Tag Archives: Liberty Security & the Law

Think the Times Square suspect is scary? How about these ex-Gitmo detainees…

The SUV-bomb that failed to detonate in Times Square this past Saturday serves as timely reminder that public vigilance and rapid response by law enforcement authorities can play an important role in helping to prevent terrorist attacks.

Faisal Shahzad, a naturalized U.S. citizen, was picked up on Monday night by authorities at JFK Airport while attempting to fly to Dubai. Shahzad had just returned from a 5-month trip to Pakistan where he admitted receiving training in making bombs in Waziristan, a lawless tribal area along the Afghan border known as a terrorist haven. The Pakistani Taliban was quick to claim responsibility for the failed attack in 3 videos, and Pakistani authorities have already made several arrests.

Attorney General Eric Holder has urged the public to remain vigilant. He is absolutely correct, as significant numbers of terrorists remain at large.

According to declassified U.S. intelligence reports, a full 20% of nearly 600 ex-Guantanamo detainees are confirmed or suspected of having returned to terrorism. Some have been killed or captured, though most remain free.

While the Obama administration continues efforts to shutter Guantanamo’s detention facilities, moving most of the 183 detainees to a federal prison in Thomson, Illinois and resettling others to third party countries, an honest appraisal of the threat posed by its detainees, past and present, is in order.

Though Guantanamo critics have portrayed detainees as innocent goat herders sold for bounties, drivers, cooks, juveniles and other benign sounding fellows, the majority of the roughly 780 detainees held were actually quite dangerous. This includes the masterminds of the attacks of 9/11, on U.S. Embassies in East Africa, the USS Cole, and nightclubs in Bali.

Here is a list of the top 7 most interesting ex-Gitmo men:

Abdullah Gulam Rasoul of Afghanistan is the Taliban operations commander in the Kandahar area and leading combat against U.S. and NATO troops. Released from Guantanamo in 2007, Rasoul had claimed he was forced to carry a gun by the Taliban and was sold for a bounty. His nom de guerre: Mullah Abdullah Zakir. Remains at large.

Abu Sufyan Al-Shihri of Saudi Arabia surfaced in Yemen as the deputy leader of Al Qaeda in the Arabian Peninsula, released a propaganda video 4 days after the 2009 presidential inauguration challenging the Obama Administration. Released in 2007, he was implicated in the attack on the U.S. Embassy in Sanaa. Remains at large.

Abdullah Mehsud of Afghanistan directed a suicide bombing on Pakistan’s Minister of the Interior in 2007 which killed 31 people. Released in 2004, he subsequently kidnapped two Chinese engineers in Pakistan. A daredevil with long hair, he rallied his troops against U.S. forces on horseback. He blew himself up to avoid capture in 2007.

Abdallah Saleh Al Ajmi of Kuwait conducted a suicide bombing in Mosul, Iraq killing 13 people and wounding 42 with an explosive-laden pick-up truck on Easter Sunday 2008. Though Kuwait pledged to mitigate his security risk, they "lost track of him." Incredibly, a prestigious public relations firm and law firm, both based in Washington, DC partnered with a generous Kuwaiti Government to secure his freedom.

Hafizullah Shahbaz Khail of Afghanistan carried out an attack against U.S. troops killing two and wounding four, not long after his release from Guantanamo in 2007. A pharmacist and proclaimed supporter of President Karzai, Khail was re-captured by Afghan authorities in 2008. His U.S. attorney still claims his detention is a mistake.

Mehdi Ghezali of Sweden was released from Guantanamo 2004 and authored a book entitled, Prisoner on Guantanamo: Mehdi Ghezali tells. Ghezali was re-captured by Pakistani authorities in 2009 with a group of 12 foreigners on their way to Waziristan, where Shahzad received his training.

Ibrahim Bin Shakaran of Morocco was released in 2004 and soon re-arrested and convicted by Moroccan authorities for recruiting terrorists for Abu Musab al-Zarqawi’s Al Qaeda in Iraq (AQI). Zarqawi sent legions of suicide-bombers recruited from throughout the Middle East to kill thousands of men, women and children.

As these cases prove, releasing detainees from Guantanamo has significant risks. While these men should still be detained, overwhelming domestic and international pressure led to their release. The current administration should resist such pressure in releasing similarly dangerous detainees.

These include men like Binyam Mohammed, an Ethiopian with British residence, sent to Britain in February 2009, despite implication as Jose Padilla’s co-conspirator in a plot to blow up high-rise apartment buildings with their propane systems. (Padilla is currently serving a 17-year prison sentence) Or Ahmed Salim Zuhair, released to Saudi Arabia in June 2009, despite his alleged role in the 1995 Bosnia killing of United Nations librarian William Jefferson of Camden, New Jersey. Though Zuhair was arrested with Jefferson’s watch in his possession, according to Holder at a Senate hearing, there was "no sufficient proof" for continued detention.

The administration should reveal a list of those they intend to transfer into the country. It is impossible to determine which 183 detainees are at Guantanamo, as the complete list of all detainees released by the Bush administration in early 2006 was a snapshot in time, when the population was more than double the size.

According to the Brookings Institute, as of April 2009 when the population was roughly 240, the detainees included 27 Al Qaeda leaders and 95 lower-level Al Qaeda operatives; 21 Taliban leaders and fighters; and 92 foreign fighters. Before a judge simply decides to let them walk-out of the gates at Thomson, Illinois due to "no sufficient proof," the public should know who they are, accompanied with a bipartisan risk assessment.

 

J.D. Gordon is a Senior Fellow at the Center for Security Policy. He is a retired Navy Commander who served in the Office of the Secretary of Defense from 2005-2009 as the Pentagon spokesman for the Western Hemisphere.

When Ed Meese speaks

There is arguably no more influential conservative in America today than former Reagan Attorney General Edwin Meese. To paraphrase an old marketing slogan, when Ed Meese talks, people listen.  Rarely has such attention been more warranted than now, as President Obama prepares to select a new Supreme Court nominee whose views on national security and the law may have enormous bearing on the prospects for our victory in this War for the Free World.

After all, as Gen. Meese observed in a major policy address before an American Bar Association audience last Thursday:  "In four major cases, the Supreme Court has involved itself in the conduct of this war in what has been a change in terms of the constitutional history and the traditions of the country."

The lack of judicial restraint has, according to the Nation’s one-time top law enforcement officer, been compounded further by the "lack of clarity" on the part of the executive branch with respect to key aspects of this war.  Particularly egregious has been the Obama administration’s determined effort to obscure whether we are even at war and with whom.

Mr. Meese observed: 

As the Wall Street Journal stated just last week, ‘The United States cannot effectively combat the root causes of Islamic extremism by ignoring them. The War on Terror won’t be effective if this country overlooks the nature of the enemy and his motives.’

We must accurately recognize that we are in a war caused by certain belligerents who are seeking to impose their notions of Shariah law by threats, violence and intimidation on as much of the world as they possibly can, and who are committed to hostile action against those nations and those forces, including the United States, who they believe stand in their way.

The danger posed by such foes is compounded by the fact that they generally are illegal enemy combatants.  Mr. Meese properly says they must be so characterized under the internationally recognized laws of war "because of the way in which they conduct themselves, which makes them ineligible to be treated as prisoners of war, which have certain privileges under the Geneva conventions.  It is because they don’t operate in uniform, because they don’t operate in military units that are subject to command and control and military discipline, because they do not carry their weapons openly, because they violate the laws of war by specifically targeting civilians.

Faced with these sorts of enemies and their preferred, illegal tactics, General Meese concludes that, "…Obtaining information from captured combatants is a critical part of gaining th[e] kind of intelligence we need.  In the case of enemy aliens, it’s appropriate that we use extensive interrogation and that we have continued detention by military authorities. It’s also important that we hold these captives until they are no longer a threat…."

Mr. Reagan’s Counselor and Attorney General then laid out four enormously important suggestions to help ensure we have the "consistency, fairness and constitutional clarity" so urgently required in this time of war:

  • "United States citizens and foreign nationals legally in this country, [who] were captured anywhere except on the battlefield, should be handled by the criminal process in civilian courts. This comports with what has been usually the tradition in regard to United States citizens."
  • "Captured enemy aliens who engage in war against the United States or against United States forces – including those who enter the United States to attack us here – should be handled by the military process, including military commissions as the ultimate communicatory body and including being able to be interrogated without being Mirandized and all the other things that would normally go with a civilian court process."
  • "United States citizens caught on the battlefield where they have actually taken up arms and fought side by side with enemy aliens, they should be handled the same way as the enemy aliens are, through the military process."
  • "I believe that we as lawyers and as members of a law organization should advocate and encourage that the judiciary should return to its traditional role and refrain from further intrusion into the conduct of war. This comports with what I believe is the constitutional allocation of authority."

On that last point, Ed Meese cites one of the most influential members of the Supreme Court on national security matters, Robert Jackson.  Mr. Meese recounted how Justice Jackson, in his opinion in a landmark 1948 case, Chicago Southern vs. Waterman Steamship, said "the very nature of executive decisions as to foreign policy – and he included in that concept, defense activities – is political, not judicial." 

‘Such decisions are fully confided by our Constitution to the political departments of the government, executive and legislative. They are delicate, complex, and involve large elements of prophecy. They are, and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil.  [It is] a matter of accountability. They are decisions of a kind for which the judiciary has neither aptitude, facilities, nor responsibility, and have long been held to belong in the domain of political power, not subject to judicial intrusion or inquiry.’

President Obama and members of the United States Senate would be well advised to heed General Meese’s counsel and evaluate any candidate for the Supreme Court against the Jackson standard of judicial restraint with respect to national security matters.  The fate of the Free World may depend upon it.

 

Frank J. Gaffney, Jr. is President of the Center for Security Policy, a columnist for the Washington Times and host of the nationally syndicated program "Secure Freedom Radio" heard in Washington weeknightly at 9:00 p.m. on WTNT 570 AM.

Re-examining Guantanamo

Guantanamo has been at the center of intense political and security debates for the past decade, yet many commonly held perceptions of its detention operations and interrogations are not based upon the facts.

From the outset, Department of Defense officials characterized Guantanamo as the "least worst place" for holding al Qaeda and Taliban suspects picked up in the aftermath of Sept. 11, 2001. It was far from the battlefields of Afghanistan, where the fighting raged. It was outside the United States, making it less prone to terrorist attacks.As foreign enemy combatants held outside the country, detainees were not entitled to the same legal protections granted to American citizens. These fundamental conditions have not changed.

What has changed is that Guantanamo became vulnerable in the courts and public opinion mainly because of misperceptions. Key factors included:

  • Overstated abuse allegations: Isolated incidents of abuse were portrayed falsely as common through detainees who were instructed by al Qaeda training manuals to publicize such claims. These incidents were combined with ubiquitous photos of orange-jumpsuit-clad, hooded and shackled detainees at the primitive Camp X-Ray in the first three months of 2002, leading to an inaccurate portrayal of Guantanamo.

 

  • Confusion and conflation: Facts of detention operations and interrogations at Guantanamo were often scant in public discourse and pop culture. Torture was never condoned, nor tolerated. Waterboarding was never used there. Critics equated Guantanamo conditions to Abu Ghraib abuse some 7,000 miles away, although they were separate and unrelated.

 

  • Cynical press coverage: Most media focused reports on a handful of abuse incidents in the early years, countless unfounded abuse claims since, relatively few hunger strikers and a sea of detainee legal challenges. Despite more than 3,000 media visits, newspaper and television reports worldwide consistently used dated Camp X-Ray orange-jumpsuit photos throughout the decade as their stock footage to depict Guantanamo, though detainees were quickly moved to modern prisons modeled after facilities in Indiana and Michigan.
  • Unsustainable legal construct: Endless court challenges and negative publicity over the rights of detainees to habeas corpus culminated in three Supreme Court losses from 2004 to 2008. Holding detainees as enemy combatants under a law-of-war construct until the end of hostilities without the legal protections of either prisoners of war or criminal defendants proved untenable, in particular after Sept. 11 began to fade from the public spotlight. Lower-court proceedings showcased defense-attorney portrayals of their clients as picked up by mistake, sold for bounties, innocent goat herders, etc. while capitalizing on every government misstep.

 

  • Inadequate transparency: Years of withholding detainee names and case files resulted in insufficient releasable information for Guantanamo’s public defense. Post-Sept. 11 government measures meant to safeguard against further attacks led to an extremely cautious approach in declassifying information, leaving little material for public education efforts.While critics stressed closure, none had viable options for alternatives. Repatriation and resettlement proved difficult because of security issues and human rights concerns in some countries.Recidivism, currently estimated at 20 percent and including al Qaeda and Taliban leadership figures, remains a major concern.

Thus, the question arises on the fate of its nearly 200 detainees still held. Simply moving them to the mainland accomplishes nothing other than creating a "Gitmo North." As the administration acknowledged, indefinite detention would continue for 50 to 100 detainees – those too dangerous to release yet not prosecutable. The legal basis to detain enemy combatants under the law of war remains the same, meaning they can be held until the end of hostilities. Such a facility and its surrounding area would be converted into symbolic and accessible targets to home-grown terrorists, attracting massive potentially violent protests.

Local economic benefits have been overstated, as up to half of the funds would be for temporary construction projects, while most residents would not qualify to be guards.Some argue that closing Guantanamo would diminish al Qaeda recruiting while fostering good will in Muslim countries. The attacks of Sept. 11, on the USS Cole and East African U.S. embassies prove otherwise, as they all predate detention operations there. Anti-U.S. propaganda in the Middle East is fueled chiefly by the presence of American troops in the region, combined with the Israeli-Palestinian conflict. Guantanamo pales in comparison to these much broader issues.Many perceptions of Guantanamo detention operations and interrogations are not based on reality, but on a misleading narrative shaped by Guantanamo’s critics. Its reputation is undeserved, and its future should be re-examined.

 

J.D. Gordon, a senior fellow at the Center for Security Policy, is a retired Navy commander who served in the George W. Bush administration’s Defense Department as the Pentagon spokesman for the Western Hemisphere.

Two-and-a-half cheers for Joe Lieberman

On Fox News Sunday, Sen. Joseph Lieberman announced that he has written President Obama’s homeland-security adviser, John Brennan, expressing strong objections to the administration’s systematic dumbing-down of its characterization of the enemy we face.  This has been manifested most recently in the leak last week that the National Security Strategy now being drafted by the White House will not use the term "Islamic terrorism" and similar formulations in describing the contemporary threat.  The senator noted that this practice flies in the face of "thousands of years" of sound military and intelligence practice, which makes accurate characterization of the enemy a prerequisite for developing and executing strategies for his defeat.

Senator Lieberman expressed frustration that he had failed in previous, evidently private, efforts to persuade the president and his senior subordinates to recognize the reality that "Islamist extremism" is the ideology that animates our enemies.  The Senator was particularly and properly contemptuous of the after-action report issued on the Fort Hood massacre, which failed even to mention the fact that the shooter, Dr. Maj. Nidal Malik Hasan, was a Muslim – let alone that his business card called him a "Soldier of Allah," that his thesis at the Uniformed Services University of the Health Sciences explained why he was obliged to kill "infidels" who were going to kill Muslims, and that he shouted "Allahu Akhbar" (the Islamic martyr’s cry, meaning "God is great") as he murdered his comrades.

Senator Lieberman is, of course, absolutely right that we have no chance of defeating the enemy unless we can properly identify him.  The senator deserves our heartfelt thanks for calling out the Obama administration for adamantly and repeatedly refusing to do that – and, thereby, for increasing dramatically the danger we face from such foes.

That said, it would be desirable if the distinguished senator from Connecticut, who chairs the Senate’s Homeland Security and Governmental Affairs Committee, would refrain from characterizing the enemy as "Islamic extremists," as a way of disassociating them from the many millions of Muslims, at home and abroad, who are not determined to destroy us.  Our foes are most accurately depicted as adherents to Shariah – the virulently intolerant, supremacist, and totalitarian ideology of authoritative Islam – not as "extremists" who are somehow, in the preferred formulation of Mr. Brennan, "hijacking" the religion of peace.

The political ideology known as Shariah is the fault line between Muslims who are enemies and those who are not.  Joe Lieberman is absolutely right in trying to move the Obama administration toward honesty, transparency, and accuracy in understanding and depicting the threat we face today.  If Senator Lieberman will, himself, be more accurate about its wellsprings and character, he will make an even more vital contribution to our national security and public safety.

 

Originally posted at The Corner

 

Frank J. Gaffney Jr. is president of the Center for Security Policy and host of the nationally syndicated program Secure Freedom Radio.

Six facts to know about Guantanamo

With the debate over the fate of Guantanamo detainees continuing in earnest, it is timely to review the facts about its detention and interrogation facilities today, with an honest appraisal about its past.

Due to a disingenuous public relations campaign waged by its critics, compounded by a series of post-9/11 cautious government decisions severely hampering the release of specific information about detainees and their public security threat, Guantanamo’s reputation has suffered unfairly.

183 detainees remain including those believed to have plotted the attacks of 9/11, on the USS Cole, East African U.S. Embassies and Bali nightclubs.  Though the Obama Administration failed to meet its top priority executive order of closing Guantanamo within one year, it continues to stress closure.

As the debate continues on transferring up to 100 detainees to the federal prison in Thomson, Ill., while re-locating other detainees to the mainland for trials by military commission or in federal court while the rest await repatriation and resettlement, there are six facts to know about Guantanamo.

Guantanamo has helped to protect the United States – Guantanamo has safely and humanely held roughly 780 detainees, including Al Qaeda’s top operatives believed to have planned the attacks of 9/11, on the USS Cole and U.S. Embassies in East Africa.  Removing hundreds of terror suspects from the battlefield has undoubtedly saved countless lives.

Guantanamo is a modern, role model detention facility – Thousands of visitors including a European Parliamentary delegation have characterized it as "a model prison."  Most detainees are held in two facilities patterned on prisons in Indiana and Michigan, while the most compliant detainees live in communal barracks where they have near unlimited outside recreation time.

Guantanamo’s reputation is undeserved – Isolated incidents of abuse were falsely portrayed as common through disinformation from detainees instructed to publicize such claims by Al Qaeda training manuals. Waterboarding was never used at Guantanamo.  Some have equated Abu Ghraib abuses with Guantanamo, though it was over 7,000 miles away and entirely unrelated.

Transferring detainees to Thomson, Illinois only creates a "Gitmo North" – As indefinite detention would continue for 50-100, those too dangerous to release yet not prosecutable, the legal basis to detain remains the same.  Meanwhile, the local area would be converted into a highly symbolic and easily accessible target to home grown or overseas terror cells, let alone attractive sites for potentially violent protests.   Economic benefits have been overstated, as up to half of the jobs would be for temporary construction projects and few locals would qualify to be guards.

Closing Guantanamo will not defeat Al Qaeda recruiting – The attacks of 9/11, on the USS Cole and East African Embassies all pre-date Guantanamo.  Al Qaeda’s top recruiting tools are the presence of U.S. troops in Muslim countries and the Israeli-Palestinian conflict.
Guantanamo is but a minor sidelight compared to these broader issues.  Also, since the detainees who would be moved to another facility are the same individuals as currently held in Guantanamo, the next venue would simply replace Guantanamo as a source of anti-U.S. criticism until they are set free.

Military Commissions remain an appropriate forum for detainee trials – This legal system has historically been used to try enemy combatants in wartime, dating back to the Revolutionary War.  Hundreds of hearings have been held at Guantanamo since 2004 with three completed trials – all convictions.  Though legal challenges including up the Supreme Court resulted in three distinct versions of military commissions over the past six years, the military remains ready to move forward with additional trials.

In summary, facts about Guantanamo are in stark contrast to many of the myths that have fanned by its critics.  Increasing factual understanding of today’s reality, what happened in the past, and examining the threat posed by the remaining 183 detainees should spark a renewed debate on Guantanamo’s past, and its future.

JD Gordon, a Senior Fellow at the Center for Security Policy, is a retired Navy Commander who served in the Office of the Secretary of Defense from 2005-2009 as the Pentagon spokesman for the Western Hemisphere.

Holder unplugged

Reality keeps intruding on Attorney General Eric Holder’s approach to terrorism.

During recent testimony before the House Appropriations Commerce, Justice and Science Subcommittee, Holder had a heated exchange with Rep. John Culberson (R-Texas), over the rights of terrorists – specifically over whether a captured Osama bin Laden would need to be read his Miranda rights in accordance with the civilian prosecution model that Holder continues to advocate. 

Holder’s response: "Let’s deal with reality…we will be reading Miranda rights to the corpse of Osama bin Laden.  He will never appear in an American courtroom…He will be killed by us, or he will be killed by his own people so he’s not captured by us.  We know that."  End of story, according to Holder – no need to allow the question of civilian trials to get hung up on a remote hypothetical…except that a day later, Gen. Stanley McChrystal, commander of US forces in Afghanistan, stated that the goal of US forces remains to capture bin Laden alive, "something that is understood by everyone."  Almost everyone, anyway. 

Reality struck again back when Holder declared – without consulting with local authorities – that 9/11 mastermind Khalid Sheikh Mohammed and his associates, currently held in Guantanamo Bay, would be tried in civilian court in Manhattan.  Public outcry followed, during which New York City Mayor Michael Bloomberg, Police Commissioner Ray Kelly, and Members of Congress from both parties voiced strong opposition to the plan and urged Holder to reconsider.  The White House is now apparently close to reversing Holder’s decision, one that was clearly disconnected from any understanding of the risks associated with trying KSM in the federal court system.    

Remaining unplugged from reality, Holder continues to advocate for the cessation of terrorist detention operations at Guantanamo Bay, notwithstanding the fact that he toured the facility himself, declaring it "well-run". 

I also recently toured the detention facilities at Guantanamo.  They are beyond "well-run" – seeing detention operations up close puts in stark relief the extent to which closing Gitmo would be not only entirely unnecessary, but even counterproductive. 

Far from being the "gulag of our time", as Amnesty International famously intoned, Guantanamo is a place where Joint Task Force personnel go to great lengths to provide for the health and welfare of the detainees.  Detainees are provided up to 6,000 calories a day, with their choice of six hot meal options, including meat certified "halal" and brought in at taxpayer expense.  They have 24/7 access to their own hospital, complete with X-Ray machines, Intensive Care Units, and 500 different brand-name medications. 

The detainee library contains 13,000 books, and thousands of magazines and DVDs, in multiple languages – and every detainee is provided with daily copies of USA Today, Egyptian and Saudi newspapers, and two Korans.  Detainees are offered classes in literacy (Arabic and Pashto), English instruction, art, and "life skills" such as resume writing.  They are allowed to make phone calls every three months, with video setup, for at least one hour.  They are also offered at least four hours of recreation a day, sometimes in groups, depending on the rules of the specific camp – I saw three camps that had outdoor soccer fields, plus several with aerobic exercise equipment, table tennis, and foosball.  Even the maximum security Camp 5 allows compliant detainees three hours of TV a week, on top of their daily four hours of outdoor recreation time. 

Guantanamo allows detainees to practice Islam, providing them with prayer rugs, prayer caps, prayer beads, Korans, and other religious materials.  The recreation yard of Camp 5 (maximum security) has clearly drawn arrows in the cement, pointing towards Mecca.  Group prayer is allowed in Camps 4 and 6 (where communal living is the norm).  All detainees are allowed to observe religious holidays such as Ramadan, for which the detainee kitchen adjusts its own food prep schedule. 

This is only a sampling of how detainees are treated at Guantanamo.  Yet while this treatment may understandably prompt some to feel that the detainees have it too easy, and should be transferred to a "real prison", closing down Gitmo detention operations would leave us less safe.

Gitmo is uniquely secure.  As Admiral Tom Copeman, Commander of the Joint Task Force – Guantanamo, indicated during an interview, "it ain’t easy getting here."  The only people who can go down to Gitmo are those cleared as having business on the base – there is no "getting close" to it.  You are either in Gitmo with proper clearance, or you are at least a three hour flight away in Florida, separated by hundreds of miles of ocean.  There is no "uncontrolled land access" to the base, as Copeman put it. 

Security precautions surrounding detention operations at Gitmo are tight, and down to a science, due to several years of practicing and perfecting these measures there.  For example, journalists have photos they take in Guantanamo screened to ensure that sensitive security measures are not disclosed, and must be escorted at all times.  Guards do not share their names or hometowns with detainees, cannot refer to each other by name when in the presence of detainees, and cannot be photographed above the shoulders without consent.  Guards are not allowed to give an exact figure on the number of detainees currently in any given camp – they can only disclose a camp’s maximum capacity.  While some might argue that these measures could eventually be learned and implemented elsewhere, it is unlikely to be an overnight process.

Even harder to transplant onto another location would be the requisite wartime mindset that characterizes detention operations at Guantanamo.  As Admiral Copeman puts it, at Gitmo "war is being waged inside the wire".  The al Qaeda instruction manual has trained detainees to see confinement as another front in the war – Gitmo personnel are trained to see it the same way, and have been for the past eight years. 

This is all to say nothing of the reality that once detainees touch ground inside the United States, their lawyers will argue that their physical presence here entitles them to a greater range of constitutional protections, in deference to previous Supreme Court rulings on such questions – an argument to which many judges will no doubt be receptive.  Transferring detainees to foreign custody is also extremely risky – according to the Department of Defense, one out of five detainees released from Guantanamo have returned to terrorism. 

The reality of Guantanamo is one with which Attorney General Holder has yet to come to terms.  One has to wonder how much longer he and President Obama will remain disconnected from it just to keep an ill-conceived campaign pledge.


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Liz Cheney’s big question

At the end of the street fight the lawyers’ tongs had over Liz Cheney’s "Al-Qaeda Seven" TV ad, we’ve agreed that common criminals have the right to an attorney. Thank heavens for that. The real question the ad raised was bigger than that: Is the Obama administration on the right side or wrong side of national security? That anyone should ask suggests a problem.

Hard as it is for some to believe, they do get some things right. The Afghan surge was the right call. The drone war is killing enemy without apology. Little noticed, the Holder Justice Department’s attorneys have defended the Bush warrantless wiretap policy-in a long-running lawsuit in San Francisco’s Ninth Circuit, and last month before the Third Circuit in Philadelphia, involving the tracking of cellphone locations.

And yet . . .

It is impossible to separate the good things done by a surprisingly good national security team, mostly overseas, from the actions and public statements on fighting terror at home by the men at the top: President Obama and Attorney General Holder. Every call seems to be a jump ball-closing Guantanamo, trial venues, reading airline bombers their Miranda rights.

This is an inefficient and dangerous way to run an antiterror bureaucracy that needs clarity and consistency.

The fog moved in early. Last March they rebranded the "war on terror" as "overseas contingency operations." Then came the "civilian" trial for 9/11 mastermind Khalid Sheikh Mohammed, which even hyper-liberal Manhattanites couldn’t take, no matter the assurances about the need to rediscover "our values."

In September seven former CIA directors, citing Agency morale, asked Mr. Obama to shut down Attorney General Holder’s criminal probe of the CIA terrorist interrogators. Mr. Obama dismissed the appeal in a "Face the Nation" interview, asserting "nobody’s above the law."

It is surely true, in theory anyway, that lawyers who argued on behalf of Gitmo detainees in the past can argue for more limited rights when working for the government. Before he became Mr. Obama’s deputy solicitor general, Neal Katyal argued the pro-detainee case in Hamdan v. Rumsfeld before the Supreme Court. Two months ago, he stood before a D.C. appeals court to argue against detainee habeas corpus rights at Bagram Airfield base in Afghanistan.

The tumult over Liz Cheney’s Keep America Safe ad is being spun as a defeat for Dick Cheney’s criticism of the Obama terror policies. Agence France-Presse: "A witchhunt orchestrated by George W. Bush supporters . . . has backfired." We’ll see about that.

This fight reminds me of an earlier, similar war-the war on crime. The lawyers took over that fight, too, waging it inside an extreme-fighting cage known as the Fourth Amendment, with its now-famous exclusionary rule for police searches.

Ultimately it was voters inside polling booths, not lawyers, who settled that fight.

After the Supreme Court’s restrictive police-search decisions in the 1960s, Richard Nixon rode "law and order" into the White House in 1968. Liberals got into trouble during the law and order years because their views on crime seemed an abstraction, elegantly argued but oblivious to the lives of innocent people on the street.

I’m convinced the reason liberal New York City re-elected Rudy Giuliani and then Mike Bloomberg twice was mainly to continue the 1990s’ no-nonsense policing program of Commissioners William Bratton then and Ray Kelly now. The comfort level on the streets is the city’s No. 1 issue, each day. After 9/11, that’s true everywhere in the U.S.

Whether the wolf at the door is a common criminal or a foreign-trained terrorist, the legal issue at the level of the voting booth is simple: Where along the spectrum of personal safety do I and my family feel comfortable? On this score, the incoherence of the Obama administration’s policies on domestic terrorism, detainees and military tribunals unsettles people. When they felt this way about personal safety in the 1970s and ’80s, their votes for "law and order" candidates were an attempt to restore balance. It worked. The Supreme Court narrowed the 1960s’ most expansive interpretations of defendants’ rights.

Barack Obama’s handling of terror is a voting issue. Republican candidates should put it before voters this November and in 2012. Looking at the failed Christmas airliner bombing, the aggressive recruitment of home-grown jihadis and the aborted Najibullah Zazi bombings in New York City, I’d say establishing a policy of coherence and constancy in meeting this threat is more urgent than the health-care odyssey Mr. Obama has forced on us for a year.

Whatever one thinks of Liz Cheney’s TV ad, it asks one big question: Is the legal mindset of the lawyers she criticized naively expansive and dangerous, just as it was on domestic crime 30 years ago? Let the voters decide.

If GOP candidates are looking for a way to talk about this in terms voters will get, put it this way: You look at the Obama team’s views on terrorism and the law, from the top down, and then ask yourself, Are they going to protect us 24/7 . . . or not? That’s one question you never had to ask about John Yoo.

 

Originally posted at the Wall Street Journal

New ‘CAIR Observatory’ connects the dots on CAIRs foreign funding and lobbying

March 17, 2010: WASHINGTON, DC – The Center for Security Policy announces the launch of the website CAIR Observatory at www.cairobservatory.org. The website presents comprehensive open-source evidence and analysis alleging that the Council on American-Islamic Relations (CAIR) has acted as a foreign agent on behalf of Iran, Saudi Arabia, the United Arab Emirates and Kuwait.  The Foreign Agents Registration Act (FARA) requires any agent of a foreign principal – including agents of foreign states, political parties, corporations, non-governmental organizations and even individuals – to register with the U.S. Department of Justice as a foreign agent.

The centerpiece of the website is the report “CAIR and the Foreign Agents Registration Act,” which details the foreign funding, foreign direction and domestic political influence operations of the Council on American-Islamic Relations (CAIR) in the United States.
The report documents these CAIR activities as a foreign agent:

  • CAIR received at least $2,192,203 in Contributions, Income and Money from foreign principals in the form of 10 distinct transactionsReceived a $2,106,251 mortgage loan from a foreign principal for their Washington, D.C. headquarters
  • CAIR secured the promise of at least $54,500,000 in pledges from foreign principals
  • CAIR met and coordinated with foreign principals on at least 30 occasions
  • CAIR engaged in at least 50 political influence operations on behalf of foreign principals in the United States

The Center has additional evidence that cannot be made public at this time documenting an additional $2.4 million in foreign donations and loans given to CAIR since 2000.
The goal of the “CAIR Observatory” (http://www.cairobservatory.org/) is to build a model for researching and compiling evidence of illegal behavior by Muslim Brotherhood front organizations, with a focus on organizations operating in the United States as unregistered foreign agents for the Organization of the Islamic Conference (OIC) and its member states.

The website’s name – “CAIR Observatory” – is a direct counter to the so-called “Islamophobia Observatory” maintained by the Organization of the Islamic Conference (OIC).  The Jeddah, Saudi Arabia-based OIC has been a contributor to CAIR, and the two have a history of coordinated meetings, methodologies and goals.  The website will be updated regularly with new evidence on CAIR’s ongoing activities as a currently unregistered foreign agent.

 

-30-

Gitmo’s indefensible lawyers

On the evening of Jan. 26, 2006, military guards at Guantanamo Bay made an alarming discovery during a routine cell check. Lying on the bed of a Saudi detainee was an 18-page color brochure. The cover consisted of the now famous photograph of newly-arrived detainees dressed in orange jumpsuits-masked, bound and kneeling on the ground at Camp X-Ray-just four months after 9/11. Written entirely in Arabic, it also included pictures of what appeared to be detainee operations in Iraq. Major General Jay W. Hood, then the commander of Joint Task Force-Guantanamo, concurred with the guards that this represented a serious breach of security.

Maj. Gen. Hood asked his Islamic cultural adviser to translate. The cover read: "Cruel. Inhuman. Degrades Us All: Stop Torture and Ill-Treatment in the ‘War on Terror.’" It was published by Amnesty International in the United Kingdom and portrayed America and its allies as waging a campaign of torture against Muslims around the globe.

"One thread that runs through many of the testimonies from prisons in Afghanistan and Iraq, and from Guantanamo," the brochure read, "is that of anti-Arab, anti-Islamic, and other racist abuse."

How did the detainee get it? More importantly, who gave it to him?

Majeed Abdullah Al Joudi, the detainee in whose cell the brochure was first found, told guards he received the brochure from his lawyer. An investigation by JTF-GTMO personnel revealed that Julia Tarver Mason, a partner at Paul, Weiss, Rifkind, Wharton & Garrison, had sent it to Al Joudi and eight of the firm’s other detainee clients through "legal mail"-a designation for privileged lawyer-client communications that are exempt from screening by security personnel. Worse, the investigation showed that Ms. Mason’s clients passed it to other detainees not represented by Paul, Weiss lawyers. In all, more than a dozen detainees received a copy.

At Guantanamo, "legal mail" is strictly limited to correspondence between counsel and a detainee that is related to representation of the detainee, privileged documents and publicly filed legal documents. But even "legal mail," according to the rules mandated by Judge Joyce Hens Green in a 2004 protective order, prohibits lawyers from giving detainees information relating to military operations, intelligence, arrests, political news and current events, and the names of U.S. government personnel. Lawyers are forbidden from discussing other detainee cases not directly related to the representation of their own client.

The Amnesty International brochure, handed out at a human rights conference in London, was a political advocacy screed in clear violation of that order, which was formulated to protect force security. Maj. Gen. Hood made a command decision. He banned the Paul, Weiss lawyers from access to Guantanamo. The DOJ notified the firm.

Paul, Weiss immediately went on the offensive, backed by what one former Defense Department official, who requested anonymity, called "an armada of habeas attorneys." They sued the government, demanding that it defend the decision to eject lawyers from Gitmo, making the straight-faced claim that the Amnesty International brochure was a legitimate "report" that was "directly related" to their clients’ defense. But their bottom line argument amounted to this: A military commander at a secure overseas military facility in a time of war couldn’t remove disruptive lawyers who were inciting captured enemy detainees and endangering the safety and security of military personnel unless he first got permission from a federal judge.

In a sworn affidavit submitted to the D.C. District Court and obtained by the writers of this article in a Freedom of Information Act request, Maj. Gen. Hood did not equivocate when it came to the Amnesty International pamphlet. "The very nature of this document gives tremendous moral support to those who would strike out against our country," he stated. "It is not a factual report. Instead it is filled with second and third hand accounts, photos of protests that were staged, inflammatory photos from Iraq and provocative story captions."

Maj. Gen. Hood noted that many of the captured al Qaeda terrorists held at the camp had been "specifically trained on the Manchester Manual [an al Qaeda training manual discovered at a safe house in Britain]," which "encourages detainees to claim torture and abuse." He warned that "[e]xamples and vignettes of alleged abuse of other detainees" could be used "to fabricate their own claims of abuse and torture."

In fact, from al Qaeda’s perspective, the Amnesty International brochure was better than the Manchester Manual. It cued detainees that the abuses at Abu Ghraib "were not an aberration." The brochure told them that images from the Iraqi prison were consistent with "numerous allegations of torture and ill-treatment reported from detention centres in Afghanistan, Iraq and at Guantanamo Bay."

The message to the detainees was clear: If you want to claim you are being tortured, here is a vast menu of examples from which to choose.

But Maj. Gen. Hood’s immediate concern about the magazine’s "propaganda and misinformation" was the strong potential that it would incite detainees to act out against U.S. personnel in his facility. The Islamic cultural adviser agreed, telling Maj. Gen. Hood that "the tone of the magazine was highly inflammatory" and "would cause a negative reaction, especially amongst the more hard-core terrorist factions within the camp."

That was an understatement. Four months earlier, a core group of detainee leaders recruited as many as 131 detainees to engage in a coordinated hunger strike. The self-starvation was intended to make the detainees look like victims, win sympathy for their cause, and force the U.S. government to choose between letting them die or letting them go. The tactic worked to perfection. Human rights activists created a media firestorm with completely fabricated reports about Guantanamo medical staff using "forced feedings" to "torture" detainees.

Ms. Mason herself inflamed tensions with the hunger strikers during a visit to Guantanamo in October 2005. She told one of the detainees, Yousef Al Shehri, that the U.S. government had no court authority to feed him using a nasal tube, according to Justice Department documents. As a result, Al Shehri pulled out his feeding tube, persuaded detainees in his cell block to do the same and exhorted them to physically resist efforts to reinsert the tube. DOJ lawyers would later argue that Ms. Mason’s advocacy "resulted in a disruption of camp security and a potential threat to the health of eight hunger-striking detainees."

Despite this history, Paul, Weiss attorneys were apparently so confident that the DOJ could be cowed into submission that they provided the court with exhibits-letters, emails and court filings-documenting gross violations of the protective order by other habeas attorneys whose access was not cut off, ostensibly to show that Paul, Weiss was being treated unfairly.

We obtained Justice Department accounts of some of those incidents under a Freedom of Information Act request. Examples included an incident in which a lawyer sent his detainee client the transcript of a virulently anti-American speech that compared military physicians to Joseph Mengele, the Nazi doctor of Auschwitz, called DOJ lawyers "desk torturers" and suggested that the "abuses carried out by U.S. forces at Abu Ghraib . . . could involve the President in the commission of war crimes."

Other incidents listed in the FOIA material included: a lawyer who was caught in the act of making a hand-drawn map of a detention camp’s layout, including guard towers; a lawyer who sent a letter to his detainee client telling him that "we cannot depend on the military to do the right thing" and conveying his message of support to other detainees who were not his clients; lawyers who posted photos of Guantanamo security badges on the Internet; lawyers who provided news outlets with "interviews" of their clients using questions provided in advance by the news organization; and a lawyer who gave his client a list of all the detainees.

If the stated intent was to show that the government had singled out Paul, Weiss attorneys, the unstated purpose was to demonstrate something even more significant to the government’s lawyers. They were outnumbered and outgunned. The Gitmo bar had grown to include some 400 lawyers from as many as 50 law firms that were subsidized by the millions of dollars earned from their paying corporate clients. They had the legal talent, the support of the international press and the judicial wind at their backs. They could bury the DOJ in paper. If one lawyer was taken out, she could be replaced by another.

"They were beaten down by the litigation," said the former Defense Department official who asked to remain anonymous. "If I’d gotten caught passing war news to detainees, my security clearance would have been pulled."

But why would American lawyers, after 9/11 and the brutal slaughter of 3,000 fellow citizens, hand members of al Qaeda information about the war in Iraq and Afghanistan? The records indicate that attorneys were printing news off the Internet and passing it to detainees at the same time that U.S. forces in Iraq were sustaining devastating casualties from IED attacks.

"They would bring contraband in their briefcases, in manila envelopes," an active-duty officer familiar with Defense Department records on attorney access violations told us. "They did it because they knew the detainees were hungry for news and they wanted to establish trust."

The desire to establish trust is evident in Ms. Mason’s own affidavit to the D.C. court concerning the status of her firm’s representation of Saudi detainees in habeas cases. The attorneys couldn’t remain as attorney of record and go forward with a habeas case if the detainees wouldn’t cooperate with them. "While we have made substantial progress in developing rapport and trust with our clients," she stated, "we have not yet been able to secure from all of them written acknowledgment of our representation." She attributes this to "torture and abuse . . . at the hands of the American military" as opposed to the Islamist mindset that sees no distinction between American attorneys in suits and American personnel in uniform. Indeed, court records reveal that Yousef Al Shehri wrote to the court, "expressing in no uncertain terms that he desires neither representation, nor a lawsuit on his behalf."

Ultimately, the government would reach a settlement with the Paul, Weiss lawyers. Ms. Mason and her team were allowed to resume their trips to Guantanamo in May 2006. But the DOJ’s surrender emboldened the Gitmo bar even further. Last August, the Washington Post reported that three lawyers defending Khalid Sheikh Mohammed and his 9/11 co-conspirators showed their clients photographs of covert CIA officers in an attempt to identify the individuals who interrogated them after they were captured overseas. Lawyers working for the John Adams Project, formed to support the legal team representing KSM and his cohorts, provided the defense attorneys with the photographs, according to the Post. None of the attorneys under investigation were identified in the Post report.

In the last several days, the debate has taken a detour about what some have called a "shameful attack" on the "noble attorneys" who have chosen to defend "unpopular people." A national security organization, Keep America Safe (of which Ms. Burlingame is a board member), used the phrase "Al Qaeda 7" in an Internet ad to describe seven unnamed Department of Justice political appointees who previously represented or advocated on behalf of terrorists.

The purpose of the ad was to prod Attorney General Eric Holder to disclose to the public which detainee attorneys he has hired to work on behalf of the American people, and whether they are involved in the policy-making decisions that will affect the nation’s safety and security while we are at war. He was asked for this information by several members of the U.S. Senate, and he was stonewalling.

The attorney general has the right to select whomever he chooses to work in his department, and to set policy as he sees fit. He does not, however, have the right to do it in the dark. The policies he advances must face the scrutiny of the American people, his No. 1 client.

The public has a right to know, for instance, that one of Mr. Holder’s early political hires in the department’s national security division was Jennifer Daskal, a former attorney for Human Rights Watch. Her work there centered on efforts to close Guantanamo Bay, shut down military commissions-which she calls "kangaroo courts"-and set detainees who cannot be tried in civilian courts free. She has written that freeing dangerous terrorists is an "assumption of risk" that we must take in order to cleanse the nation of Guantanamo’s moral stain. This suggests that Ms. Daskal, who serves on the Justice Department’s Detainee Policy Task Force, is entirely in sync with Mr. Holder and a White House whose chief counterterrorism official (John Brennan) considers a 20% detainee recidivism rate "not that bad."

It is entirely legitimate to ask who else among Mr. Holder’s hires from the Gitmo bar is shaping or influencing national security policy decisions. Meanwhile, the public can decide whether the lawyers at Paul, Weiss who are volunteering at Guantanamo are an example of the legal profession’s noblest traditions.

We spoke to Ms. Mason’s executive assistant on Friday seeking her comments. Multiple calls and emails had not been returned as this paper went to press last night.

On Feb. 20, 2007, a post on the Paul, Weiss Web site proudly announced "Paul, Weiss achieves more victories for Guantanamo detainees." Two detainees were released from Gitmo to their home in Saudi Arabia. One was Majeed Abdullah Al Joudi, a recipient of the Amnesty International "report." The Web site needs an update. The Pentagon has identified Al Joudi as a "confirmed" recidivist who is "directly involved" with the facilitation of "terrorist activities."

Yousef Al Shehri, the detainee who led his cell block in the feeding tube rebellion, was also released in November 2007. In early 2009 he was listed on the Saudi Kingdom’s list of 85 "most wanted" extremists. Yousef was killed last October during a shootout with Saudi security forces on his way to a martyrdom operation. He and another jihadist, disguised as women and wearing suicide vests, killed a security officer in the clash. Yousef’s brother-in-law, Said Al Shehri, also released from Gitmo, is currently the second in command of al Qaeda in the Arabian Peninsula, the branch that launched the Christmas Day airline attack last year.

 

Originally posted at the Wall Street Journal

 

Debra Burlingame, a former attorney, is the sister of Charles F. "Chic" Burlingame III, pilot of American Airlines flight 77, which was crashed at the Pentagon on September 11, 2001. She is a co-founder of Keep America Safe. Thomas Joscelyn is a senior fellow at the Foundation for Defense of Democracies.

Gitmo’s indefensible lawyers

On the evening of Jan. 26, 2006, military guards at Guantanamo Bay made an alarming discovery during a routine cell check. Lying on the bed of a Saudi detainee was an 18-page color brochure. The cover consisted of the now famous photograph of newly-arrived detainees dressed in orange jumpsuits-masked, bound and kneeling on the ground at Camp X-Ray-just four months after 9/11. Written entirely in Arabic, it also included pictures of what appeared to be detainee operations in Iraq. Major General Jay W. Hood, then the commander of Joint Task Force-Guantanamo, concurred with the guards that this represented a serious breach of security.

Maj. Gen. Hood asked his Islamic cultural adviser to translate. The cover read: "Cruel. Inhuman. Degrades Us All: Stop Torture and Ill-Treatment in the ‘War on Terror.’" It was published by Amnesty International in the United Kingdom and portrayed America and its allies as waging a campaign of torture against Muslims around the globe.

"One thread that runs through many of the testimonies from prisons in Afghanistan and Iraq, and from Guantanamo," the brochure read, "is that of anti-Arab, anti-Islamic, and other racist abuse."

How did the detainee get it? More importantly, who gave it to him?

Majeed Abdullah Al Joudi, the detainee in whose cell the brochure was first found, told guards he received the brochure from his lawyer. An investigation by JTF-GTMO personnel revealed that Julia Tarver Mason, a partner at Paul, Weiss, Rifkind, Wharton & Garrison, had sent it to Al Joudi and eight of the firm’s other detainee clients through "legal mail"-a designation for privileged lawyer-client communications that are exempt from screening by security personnel. Worse, the investigation showed that Ms. Mason’s clients passed it to other detainees not represented by Paul, Weiss lawyers. In all, more than a dozen detainees received a copy.

At Guantanamo, "legal mail" is strictly limited to correspondence between counsel and a detainee that is related to representation of the detainee, privileged documents and publicly filed legal documents. But even "legal mail," according to the rules mandated by Judge Joyce Hens Green in a 2004 protective order, prohibits lawyers from giving detainees information relating to military operations, intelligence, arrests, political news and current events, and the names of U.S. government personnel. Lawyers are forbidden from discussing other detainee cases not directly related to the representation of their own client.

The Amnesty International brochure, handed out at a human rights conference in London, was a political advocacy screed in clear violation of that order, which was formulated to protect force security. Maj. Gen. Hood made a command decision. He banned the Paul, Weiss lawyers from access to Guantanamo. The DOJ notified the firm.

Paul, Weiss immediately went on the offensive, backed by what one former Defense Department official, who requested anonymity, called "an armada of habeas attorneys." They sued the government, demanding that it defend the decision to eject lawyers from Gitmo, making the straight-faced claim that the Amnesty International brochure was a legitimate "report" that was "directly related" to their clients’ defense. But their bottom line argument amounted to this: A military commander at a secure overseas military facility in a time of war couldn’t remove disruptive lawyers who were inciting captured enemy detainees and endangering the safety and security of military personnel unless he first got permission from a federal judge.

In a sworn affidavit submitted to the D.C. District Court and obtained by the writers of this article in a Freedom of Information Act request, Maj. Gen. Hood did not equivocate when it came to the Amnesty International pamphlet. "The very nature of this document gives tremendous moral support to those who would strike out against our country," he stated. "It is not a factual report. Instead it is filled with second and third hand accounts, photos of protests that were staged, inflammatory photos from Iraq and provocative story captions."

Maj. Gen. Hood noted that many of the captured al Qaeda terrorists held at the camp had been "specifically trained on the Manchester Manual [an al Qaeda training manual discovered at a safe house in Britain]," which "encourages detainees to claim torture and abuse." He warned that "[e]xamples and vignettes of alleged abuse of other detainees" could be used "to fabricate their own claims of abuse and torture."

In fact, from al Qaeda’s perspective, the Amnesty International brochure was better than the Manchester Manual. It cued detainees that the abuses at Abu Ghraib "were not an aberration." The brochure told them that images from the Iraqi prison were consistent with "numerous allegations of torture and ill-treatment reported from detention centres in Afghanistan, Iraq and at Guantanamo Bay."

The message to the detainees was clear: If you want to claim you are being tortured, here is a vast menu of examples from which to choose.

But Maj. Gen. Hood’s immediate concern about the magazine’s "propaganda and misinformation" was the strong potential that it would incite detainees to act out against U.S. personnel in his facility. The Islamic cultural adviser agreed, telling Maj. Gen. Hood that "the tone of the magazine was highly inflammatory" and "would cause a negative reaction, especially amongst the more hard-core terrorist factions within the camp."

That was an understatement. Four months earlier, a core group of detainee leaders recruited as many as 131 detainees to engage in a coordinated hunger strike. The self-starvation was intended to make the detainees look like victims, win sympathy for their cause, and force the U.S. government to choose between letting them die or letting them go. The tactic worked to perfection. Human rights activists created a media firestorm with completely fabricated reports about Guantanamo medical staff using "forced feedings" to "torture" detainees.

Ms. Mason herself inflamed tensions with the hunger strikers during a visit to Guantanamo in October 2005. She told one of the detainees, Yousef Al Shehri, that the U.S. government had no court authority to feed him using a nasal tube, according to Justice Department documents. As a result, Al Shehri pulled out his feeding tube, persuaded detainees in his cell block to do the same and exhorted them to physically resist efforts to reinsert the tube. DOJ lawyers would later argue that Ms. Mason’s advocacy "resulted in a disruption of camp security and a potential threat to the health of eight hunger-striking detainees."

Despite this history, Paul, Weiss attorneys were apparently so confident that the DOJ could be cowed into submission that they provided the court with exhibits-letters, emails and court filings-documenting gross violations of the protective order by other habeas attorneys whose access was not cut off, ostensibly to show that Paul, Weiss was being treated unfairly.

We obtained Justice Department accounts of some of those incidents under a Freedom of Information Act request. Examples included an incident in which a lawyer sent his detainee client the transcript of a virulently anti-American speech that compared military physicians to Joseph Mengele, the Nazi doctor of Auschwitz, called DOJ lawyers "desk torturers" and suggested that the "abuses carried out by U.S. forces at Abu Ghraib . . . could involve the President in the commission of war crimes."

Other incidents listed in the FOIA material included: a lawyer who was caught in the act of making a hand-drawn map of a detention camp’s layout, including guard towers; a lawyer who sent a letter to his detainee client telling him that "we cannot depend on the military to do the right thing" and conveying his message of support to other detainees who were not his clients; lawyers who posted photos of Guantanamo security badges on the Internet; lawyers who provided news outlets with "interviews" of their clients using questions provided in advance by the news organization; and a lawyer who gave his client a list of all the detainees.

If the stated intent was to show that the government had singled out Paul, Weiss attorneys, the unstated purpose was to demonstrate something even more significant to the government’s lawyers. They were outnumbered and outgunned. The Gitmo bar had grown to include some 400 lawyers from as many as 50 law firms that were subsidized by the millions of dollars earned from their paying corporate clients. They had the legal talent, the support of the international press and the judicial wind at their backs. They could bury the DOJ in paper. If one lawyer was taken out, she could be replaced by another.

"They were beaten down by the litigation," said the former Defense Department official who asked to remain anonymous. "If I’d gotten caught passing war news to detainees, my security clearance would have been pulled."

But why would American lawyers, after 9/11 and the brutal slaughter of 3,000 fellow citizens, hand members of al Qaeda information about the war in Iraq and Afghanistan? The records indicate that attorneys were printing news off the Internet and passing it to detainees at the same time that U.S. forces in Iraq were sustaining devastating casualties from IED attacks.

"They would bring contraband in their briefcases, in manila envelopes," an active-duty officer familiar with Defense Department records on attorney access violations told us. "They did it because they knew the detainees were hungry for news and they wanted to establish trust."

The desire to establish trust is evident in Ms. Mason’s own affidavit to the D.C. court concerning the status of her firm’s representation of Saudi detainees in habeas cases. The attorneys couldn’t remain as attorney of record and go forward with a habeas case if the detainees wouldn’t cooperate with them. "While we have made substantial progress in developing rapport and trust with our clients," she stated, "we have not yet been able to secure from all of them written acknowledgment of our representation." She attributes this to "torture and abuse . . . at the hands of the American military" as opposed to the Islamist mindset that sees no distinction between American attorneys in suits and American personnel in uniform. Indeed, court records reveal that Yousef Al Shehri wrote to the court, "expressing in no uncertain terms that he desires neither representation, nor a lawsuit on his behalf."

Ultimately, the government would reach a settlement with the Paul, Weiss lawyers. Ms. Mason and her team were allowed to resume their trips to Guantanamo in May 2006. But the DOJ’s surrender emboldened the Gitmo bar even further. Last August, the Washington Post reported that three lawyers defending Khalid Sheikh Mohammed and his 9/11 co-conspirators showed their clients photographs of covert CIA officers in an attempt to identify the individuals who interrogated them after they were captured overseas. Lawyers working for the John Adams Project, formed to support the legal team representing KSM and his cohorts, provided the defense attorneys with the photographs, according to the Post. None of the attorneys under investigation were identified in the Post report.

In the last several days, the debate has taken a detour about what some have called a "shameful attack" on the "noble attorneys" who have chosen to defend "unpopular people." A national security organization, Keep America Safe (of which Ms. Burlingame is a board member), used the phrase "Al Qaeda 7" in an Internet ad to describe seven unnamed Department of Justice political appointees who previously represented or advocated on behalf of terrorists.

The purpose of the ad was to prod Attorney General Eric Holder to disclose to the public which detainee attorneys he has hired to work on behalf of the American people, and whether they are involved in the policy-making decisions that will affect the nation’s safety and security while we are at war. He was asked for this information by several members of the U.S. Senate, and he was stonewalling.

The attorney general has the right to select whomever he chooses to work in his department, and to set policy as he sees fit. He does not, however, have the right to do it in the dark. The policies he advances must face the scrutiny of the American people, his No. 1 client.

The public has a right to know, for instance, that one of Mr. Holder’s early political hires in the department’s national security division was Jennifer Daskal, a former attorney for Human Rights Watch. Her work there centered on efforts to close Guantanamo Bay, shut down military commissions-which she calls "kangaroo courts"-and set detainees who cannot be tried in civilian courts free. She has written that freeing dangerous terrorists is an "assumption of risk" that we must take in order to cleanse the nation of Guantanamo’s moral stain. This suggests that Ms. Daskal, who serves on the Justice Department’s Detainee Policy Task Force, is entirely in sync with Mr. Holder and a White House whose chief counterterrorism official (John Brennan) considers a 20% detainee recidivism rate "not that bad."

It is entirely legitimate to ask who else among Mr. Holder’s hires from the Gitmo bar is shaping or influencing national security policy decisions. Meanwhile, the public can decide whether the lawyers at Paul, Weiss who are volunteering at Guantanamo are an example of the legal profession’s noblest traditions.

We spoke to Ms. Mason’s executive assistant on Friday seeking her comments. Multiple calls and emails had not been returned as this paper went to press last night.

On Feb. 20, 2007, a post on the Paul, Weiss Web site proudly announced "Paul, Weiss achieves more victories for Guantanamo detainees." Two detainees were released from Gitmo to their home in Saudi Arabia. One was Majeed Abdullah Al Joudi, a recipient of the Amnesty International "report." The Web site needs an update. The Pentagon has identified Al Joudi as a "confirmed" recidivist who is "directly involved" with the facilitation of "terrorist activities."

Yousef Al Shehri, the detainee who led his cell block in the feeding tube rebellion, was also released in November 2007. In early 2009 he was listed on the Saudi Kingdom’s list of 85 "most wanted" extremists. Yousef was killed last October during a shootout with Saudi security forces on his way to a martyrdom operation. He and another jihadist, disguised as women and wearing suicide vests, killed a security officer in the clash. Yousef’s brother-in-law, Said Al Shehri, also released from Gitmo, is currently the second in command of al Qaeda in the Arabian Peninsula, the branch that launched the Christmas Day airline attack last year.

 

Originally posted at the Wall Street Journal

 

Debra Burlingame, a former attorney, is the sister of Charles F. "Chic" Burlingame III, pilot of American Airlines flight 77, which was crashed at the Pentagon on September 11, 2001. She is a co-founder of Keep America Safe. Thomas Joscelyn is a senior fellow at the Foundation for Defense of Democracies.