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History > 2012 > USA > Terrorism (I)




Julia Rivas holds her son's picture,

Moises N. Rivas who worked at the World Trade Center,

during the commemoration ceremony

of the 11th anniversary of the Sept. 11, 2001 terrorist attacks

by the North Pool at World Trade Center in New York on Sept. 11.



Chang W. Lee/The New York via Associated Press


Boston Globe > Big Picture > 9/11:

United States marks 11th anniversary of attacks

September 12, 2012
















Federal Power

to Intercept Messages Is Extended


December 28, 2012
The New York Times


WASHINGTON — Congress gave final approval on Friday to a bill extending the government’s power to intercept electronic communications of spy and terrorism suspects, after the Senate voted down proposals from several Democrats and Republicans to increase protections of civil liberties and privacy.

The Senate passed the bill by a vote of 73 to 23, clearing it for approval by President Obama, who strongly supports it. Intelligence agencies said the bill was their highest legislative priority.

Critics of the bill, including Senators Ron Wyden of Oregon, a Democrat, and Rand Paul of Kentucky, a Republican, expressed concern that electronic surveillance, though directed at noncitizens, inevitably swept up communications of Americans as well.

“The Fourth Amendment was written in a different time and a different age, but its necessity and its truth are timeless,” Mr. Paul said, referring to the constitutional ban on unreasonable searches and seizures. “Over the past few decades, our right to privacy has been eroded. We have become lazy and haphazard in our vigilance. Digital records seem to get less protection than paper records.”

The bill, which extends the government’s surveillance authority for five years, was approved in the House by a vote of 301 to 118 in September. Mr. Obama is expected to sign the bill in the next few days.

Congressional critics of the bill said that they suspected that intelligence agencies were picking up the communications of many Americans, but that they could not be sure because the agencies would not provide even rough estimates of how many people inside the United States had had communications collected under authority of the surveillance law, known as the Foreign Intelligence Surveillance Act.

The inspector general of the National Security Agency told Congress that preparing such an estimate was beyond the capacity of his office.

The chief Senate supporter of the bill, Dianne Feinstein, Democrat of California and chairwoman of the Senate intelligence committee, said the proposed amendments were unnecessary. Moreover, she said, any changes would be subject to approval by the House, and the resulting delay could hamper the government’s use of important intelligence-gathering tools, for which authority is set to expire next week.

The Foreign Intelligence Surveillance Act was adopted in 1978 and amended in 2008, with the addition of new surveillance authority and procedures, which are continued by the bill approved on Friday. The 2008 law was passed after the disclosure that President George W. Bush had authorized eavesdropping inside the United States, to search for evidence of terrorist activity, without the court-approved warrants ordinarily required for domestic spying.

Senator Mark Udall, Democrat of Colorado, said that he and Mr. Wyden were concerned that “a loophole” in the 2008 law “could allow the government to effectively conduct warrantless searches for Americans’ communications.”

James R. Clapper Jr., the director of national intelligence, told Congress, “There is no loophole in the law.”

By a vote of 52 to 43, the Senate on Friday rejected a proposal by Mr. Wyden to require the national intelligence director to tell Congress if the government had collected any domestic e-mail or telephone conversations under the surveillance law.

The Senate also rejected, 54 to 37, an amendment that would have required disclosure of information about significant decisions by a special federal court that reviews applications for electronic surveillance in foreign intelligence cases.

The amendment was proposed by one of the most liberal senators, Jeff Merkley, Democrat of Oregon, and one of the most conservative, Mike Lee, Republican of Utah.

The No. 2 Senate Democrat, Richard J. Durbin of Illinois, said the surveillance law “does not have adequate checks and balances to protect the constitutional rights of innocent American citizens.”

“It is supposed to focus on foreign intelligence,” Mr. Durbin said, “but the reality is that this legislation permits targeting an innocent American in the United States as long as an additional purpose of the surveillance is targeting a person outside the United States.”

However, 30 Democrats joined 42 Republicans and one independent in voting for the bill. Three Republicans — Mr. Lee, Mr. Paul and Senator Lisa Murkowski of Alaska — voted against the bill, as did 19 Democrats and one independent.

Mr. Merkley said the administration should provide at least unclassified summaries of major decisions by the Foreign Intelligence Surveillance Court.

“An open and democratic society such as ours should not be governed by secret laws,” Mr. Merkley said, “and judicial interpretations are as much a part of the law as the words that make up our statute.”

Mrs. Feinstein said the law allowed intelligence agencies to go to the court and get warrants for surveillance of “a category of foreign persons,” without showing probable cause to believe that each person was working for a foreign power or a terrorist group.

Mr. Wyden said these writs reminded him of the “general warrants that so upset the colonists” more than 200 years ago.

“The founding fathers could never have envisioned tweeting and Twitter and the Internet,” Mr. Wyden said. “Advances in technology gave government officials the power to invade individual privacy in a host of new ways.”

    Federal Power to Intercept Messages Is Extended, NYT, 28.12.2012,






Three Men Appear in Court

in Mysterious Terror Case


December 21, 2012
The New York Times


Three men appeared in Federal District Court in Brooklyn on Friday on charges that they had trained to be suicide bombers with a Somali terrorist group.

The defendants, Ali Yasin Ahmed, 27, Mahdi Hashi, 23, and Mohamed Yusuf, 29, were arrested in August by authorities in Africa while going to Yemen. They are accused of participating in weapons and explosives training with Al Shabab, a United States-designated terrorist group linked to Al Qaeda, during a four-year period beginning in 2008. Court documents show no connection between the alleged crimes and the United States.

Much of the case is shrouded in mystery. For four months, the case remained under seal, and the court documents unsealed on Friday contained little elaboration on the crimes or any indication of why the case was brought in New York. Even the nationalities of the men were unclear. They appeared in court with the aid of a Swedish interpreter.

The case is not the first brought in New York involving foreigners accused of acts of terrorism abroad. In June, an Eritrean man, Mohamed Ibrahim Ahmed, pleaded guilty in Federal District Court in Manhattan to conspiring to support Al Shabab. More than 30 defendants have been prosecuted in this country for supporting the group.

Al Shabab is known for a strict Islamist ideology calling for amputations and public stonings for violations of Islamic law.

American prosecutors have said the group worked closely with Al Qaeda in Yemen and Pakistan, harboring terrorists wanted for bombings of United States Embassies in Kenya and Tanzania.

In a statement, Loretta E. Lynch, the United States attorney for the Eastern District of New York, said, “We will use every tool at our disposal to combat terrorist groups, deter terrorist activity and incapacitate individual terrorists.”

    Three Men Appear in Court in Mysterious Terror Case, NYT, 21.12.2012,






American Commander Details Al Qaeda’s Strength in Mali


December 3, 2012
The New York Times


WASHINGTON — Al Qaeda’s affiliate in North Africa is operating terrorist training camps in northern Mali and providing arms, explosives and financing to a militant Islamist organization in northern Nigeria, the top American military commander in Africa said on Monday.

The affiliate, Al Qaeda in the Islamic Maghreb, has used the momentum gained since seizing control of the northern part of the impoverished country in March to increase recruiting across sub-Saharan Africa, the Middle East and Europe, said the commander, Gen. Carter F. Ham.

General Ham’s assessment is the most detailed and sobering American military analysis so far of the consequences of the Qaeda affiliate and associated extremist groups seizing the northern part of Mali to use as a haven.

“As each day goes by, Al Qaeda and other organizations are strengthening their hold in northern Mali,” General Ham said in remarks at the Homeland Security Policy Institute at George Washington University. “There is a compelling need for the international community, led by Africans, to address that.”

In addition to the risks inside Mali, General Ham also said that members of Boko Haram, an extremist group in northern Nigeria, had traveled to training camps in northern Mali and have most likely received financing and explosives from the Qaeda franchise. “We have seen clear indications of collaboration among the organizations,” he said.

Radical Islamists have turned northern Mali into an enclave for Qaeda militants and for the imposition of harsh Shariah law, which has been used to terrorize the population, particularly women, with amputations, stonings, whippings and other abuses.

The Qaeda North Africa affiliate is now considered one of the best armed and wealthiest of the Qaeda franchises across the world, largely because of millions of dollars gained in kidnapping ransoms, drug proceeds and illicit trafficking in fuel and tobacco, General Ham said.

Last week, Ban Ki-moon, the United Nations secretary general, recommended that the Security Council endorse a plan by the African Union and the Economic Community of West African States to deploy a security force at the request of the Mali government to reclaim the north from the extremists. But the action did not offer financial support from the United Nations.

“Northern Mali is at risk of becoming a permanent haven for terrorists and organized criminal networks where people are subjected to a very strict interpretation of Shariah law and human rights are abused on a systematic basis,” Mr. Ban said in his report.

While a detailed military plan has yet to be drafted, the idea has been for about 3,300 troops from Nigeria and other African countries to help Mali’s military mount a campaign against the militants. France, the United States and other countries would help with training, intelligence and logistics.

General Ham acknowledged that Qaeda fighters would probably solidify their gains in northern Mali — an area the size of France — in the months that it would take to train and equip an African force to help Mali’s fractured military oust the militants from the north.

General Ham said that pursuing a diplomatic solution should be the first avenue for resolving the conflict. Malian diplomats have recently met with some ethnic Tuareg rebels in neighboring Burkina Faso in an attempt to resolve some long-standing complaints by the Tuareg people and isolate the Arab foreign fighters from the Qaeda franchise.

General Ham, a former Iraq war commander who oversaw the initial American-led air campaign against Libya last year, identified hurdles that an African force would face in evicting the extremists. Most of the African militaries likely to participate in such an operation have largely been trained and equipped for peacekeeping missions, not offensive operations, he said.

The region’s desert terrain, vast distances and the likelihood of an extended conflict also pose significant challenges to an African force, as well as to any Western militaries playing supporting roles, he said.

Mr. Ban identified even more basic issues to address before an African-led force would be ready to deploy. “Fundamental questions on how the force would be led, sustained, trained, equipped and financed remain unanswered,” he said in his 39-page report to the Security Council last Wednesday.

Islamists seized control of the long-unstable north after a coup d’état in the Malian capital of Bamako last March. The Malian Army collapsed after the coup, fleeing the main cities of the north in the wake of the rebel advance, and power in Bamako has since been uneasily shared by weak civilian leaders and the military, which has been accused of serious human rights abuses.

The fall of Col. Muammar el-Qaddafi in Libya prompted Tuareg fighters from northern Mali, who had been fighting alongside Colonel Qaddafi’s forces, to return home with weapons from Libyan arsenals. They joined with Qaeda-affiliated Islamist militants who had moved to the lightly policed region from Algeria, and the two groups easily drove out the weakened Malian army in late March and early April. The Islamists then turned on the Tuaregs, routing them and consolidating control in the region in May and June.

    American Commander Details Al Qaeda’s Strength in Mali, NYT, 3.12.2012,






Rules for Targeted Killing


November 29, 2012
The New York Times


The White House reportedly is developing rules for when to kill terrorists around the world. The world may never see them, given the Obama administration’s inclination toward unnecessary secrecy regarding its national security policy. But the effort itself is a first step toward acknowledging that when the government kills people away from the battlefield, it must stay within formal guidelines based on the rule of law — especially when the life of an American citizen is at stake.

For eight years, the United States has conducted but never formally acknowledged a program to kill terrorists associated with Al Qaeda and the Taliban away from the battlefield in Afghanistan. Using drones, the Central Intelligence Agency has made 320 strikes in Pakistan since 2004, killing 2,560 or more people, including at least 139 civilians, according to the Long War Journal, a Web site that tracks counterterrorism operations. Another 55 strikes took place in Yemen.

Administration officials have never explained in any detail how these targets are chosen. Are they killing people only associated with groups that participated in the Sept. 11 attacks, the limitation imposed by Congress when it authorized military force in 2001? Or are they free to remove any threat to the United States they perceive? Officials insist they go after only actual belligerents covered in the 2001 legislation, but the public and the world have no way of knowing whether these decisions are made ad hoc, or how they would be interpreted by future presidents.

Before the election, when it looked as if Mitt Romney had a chance of winning the White House, administration officials began codifying these rules, according to a recent report in The Times by Scott Shane. Mr. Obama did not want to leave an “amorphous” program to his successor, one official told Mr. Shane anonymously.

That impulse was right, even if the reasoning was wrong. The rules for killing shouldn’t be amorphous simply because Mr. Romney might have taken over; they need to be rigorous and formalized for Mr. Obama, too. If he sets proper boundaries, it would create a precedent that his successors would have to justify breaking.

Providing a wide latitude to kill would be worse than pointless. Any rules should specify that no one can be killed unless actively planning or participating in terror, or helping lead Al Qaeda or the Taliban. Raising money for terror groups, or making tapes urging others to kill, does not justify assassination, and neither does a threat or a revolt against another government. Killing should be a last resort, when it can be demonstrated that capture is impossible. Standards for preventing the killing of innocents who might be nearby should be detailed and thorough. (Most of these rules are already part of international law.)

Standard police methods should be used on American soil. And if an American citizen operating abroad is targeted, due process is required. We have urged the formation of a special court, like the Foreign Intelligence Surveillance Court, that could review the evidence regarding a target before that person is placed on a kill list. Otherwise, the government should establish a clear procedure so officials outside of the administration are allowed to pass judgment on assassination decisions.

Mr. Obama has acknowledged the need for a “legal architecture” to be put in place “to make sure that not only am I reined in but any president’s reined in.” Yet his administration has resisted legal efforts by The Times and the American Civil Liberties Union to make public its secret legal opinions on these killings. Once the rules are completed, they should be shown to a world skeptical of countries that use deadly force without explanation.

    Rules for Targeted Killing, NYT, 29.11.2012,






Close Guantánamo Prison


November 25, 2012
The New York Times


On his second full day in office in 2009, President Obama signed an executive order that was a declaration of American renewal and decency hailed around the globe. It called for the closure, in no more than a year, of the detention camp at the United States Naval Station at Guantánamo Bay, Cuba — the grim emblem of President George W. Bush’s lawless policies of torture and detention. Accompanied by other executive orders signaling a break from the Bush era of justice delayed and denied, it was a bold beginning.

What followed was not always as uplifting. The new administration decided to adopt the Bush team’s extravagant claims of state secrets and executive power, blocking any accountability for the detention and brutalization of hundreds of men at Guantánamo and secret prisons, and denying torture victims their day in court.

Attorney General Eric Holder did the right thing by ordering a trial of Khalid Shaikh Mohammed, the self-proclaimed mastermind of the 9/11 attacks, in a federal court in Manhattan. But he bungled the politics of the decision, and the administration had to abandon its plan in the face of fierce opposition from local pols and from Congressional Republicans out to portray Mr. Obama as soft on terrorism. His self-imposed one-year deadline for closing Guantánamo passed, along with the initial boldness and inspiration. Congress piled on hobbling restrictions, making the difficult task of unraveling the Bush travesty and emptying the prison practically impossible going forward.

There are now 166 men held at Guantánamo, 76 fewer prisoners than when Mr. Obama took office. Only a handful of those remaining have been charged with any crime or legal violation. About 86 of the inmates were identified more than two years ago for repatriation to their home countries or resettlement elsewhere by an Obama administration task force that reviewed each prisoner’s file.

Thanks to outrageous limits Congress placed on the transfer of Guantánamo prisoners beginning in 2010, the prisoners are still being held, with no end to their incarceration in sight. In September, a member of this stranded group, a Yemeni citizen named Adnan Farhan Abdul Latif, killed himself after a federal judge’s ruling ordering his release was unfairly overturned by an appellate court. It was the kind of price a nation pays when it creates prisons like Guantánamo, beyond the reach of law and decency, a tragic reminder of the stain on American justice.

The issue of closing Guantánamo scarcely came up in the 2012 campaign. But it was good to hear Mr. Obama recommit to his promise near the end of the race. “I still want to close Guantánamo,” he said during an interview on “The Daily Show With Jon Stewart” in mid-October. “We haven’t been able to get that through Congress.”

Mr. Obama did not say how he intended to move the issue forward in his second term or break the Congressional logjam. The fact is, Guantánamo cannot be emptied without ending the Congressionally imposed restrictions on transferring prisoners to the United States; on using funds to prepare facilities on American soil that could house Guantánamo detainees; and on releasing dozens of detainees who pose no threat, if they ever did, and who have been held far too long without charges or trial.

If Mr. Obama is serious about fulfilling his pledge — and we trust he is — he needs to become more engaged this time around and be willing to spend political capital. Republicans, and some Democrats, who have helped to prevent the closing of the Guantánamo prison are implacable, and dedicated to a propagandistic argument that military justice for terrorists is somehow tougher and more reliable than civilian justice. The opposite is true, but the administration has made the case poorly.

The damaging restrictions on dealing with terrorism suspects (and, remember, this regime of false justice amounts to a second, inferior judicial system that has applied only to Muslim prisoners) are contained in the National Defense Authorization Act, the annual military budget bill. The latest version is now being hammered out on Capitol Hill and is likely to land on the president’s desk by the end of the lame-duck session.

As things stand, the restrictions in the final bill are expected to resemble the ones in current law that Mr. Obama threatened to block with a veto a year ago. He caved in at the last minute, citing added language expanding the ability of the executive branch to make exceptions to an appalling requirement that noncitizens suspected of being Qaeda operatives be held in military custody. The added language also affirmed the authority of the Federal Bureau of Investigation in terrorism matters.

Civil liberties, human rights and religious groups are now urging Mr. Obama to veto the military authorization bill for the 2013 fiscal year if it contains any language that denies the executive branch the authority to transfer Guantánamo detainees for repatriation or settlement in foreign countries or for prosecution in a federal criminal court.

They make a powerful case. Because of the existing restrictions, including an onerous requirement for certification of detainee transfers by the secretary of defense, no detainee identified for release by the task force has been certified for transfer overseas or to the United States in nearly two years. At that rate, the chance of emptying Guantánamo before the end of even a second term is zero.

Vetoing a military budget bill is no small matter, although other recent presidents have done it. Neither is making dozens of long-serving detainees wait even longer in limbo for no good reason, preserving a recruiting tool for America’s enemies.

Extending the transfer restrictions another year without a significant loosening, or without at least a firm agreement by the White House and Congressional leaders to rejoin the issue early in the new year, would risk running out the clock and permanently marring Mr. Obama’s record of safeguarding American justice and protecting human rights.

    Close Guantánamo Prison, NYT, 25.11.2012,






4 California Men Charged in Terror Plot, FBI Says


November 20, 2012
The New York Times


LOS ANGELES (AP) — Four Southern California men have been charged with plotting to kill Americans overseas and in the United States by joining al-Qaida and the Taliban in Afghanistan, federal officials said Monday.

The defendants were arrested for plotting to bomb government facilities and public places after federal authorities uncovered their plans to engage in "violent jihad," FBI spokeswoman Laura Eimiller said.

According to a federal complaint unsealed Monday during their initial appearances, Sohiel Omar Kabir, 34, introduced two other California men to the radical Islamist doctrine of Anwar al-Awlaki, a deceased al-Qaida leader.

The two, Ralph Deleon, 23, and Miguel Alejandro Santana Vidriales, 21, converted to Islam in 2010 and began engaging with Kabir and others online in discussions about jihad, including posting radical content to Facebook and expressing extremist views in comments.

In one online conversation, Santana told an FBI undercover agent that he wanted to commit jihad and expressed interest in a jihadist training camp in Jalalabad, Afghanistan.

The complaint also alleges the men went to a shooting range several times, including a Sept. 10, 2012, trip in which Deleon told a confidential FBI source that he wanted to be on the front lines overseas and use C-4, an explosive, in an attack. Santana agreed.

"I wanna do C-4s if I could put one of these trucks right here with my, with that. Just drive into, like, the baddest military base," Santana said, according to the complaint, adding that he wanted to use a large quantity of the explosive.

"If I'm gonna do that, I'm gonna take out a whole base. Might as well make it, like, big, ya know," Santana said.

At the shooting range that day, both Santana and Deleon said they were excited about the rewards from becoming a shaheed, Arabic for martyr, according to the complaint.

Authorities allege Kabir traveled to Afghanistan and communicated with Santana and Deleon so he could arrange for their travel to join him and meet with his contacts for terror organizations. They later recruited 21-year-old Arifeen David Gojali.

It wasn't immediately known if any of the men has an attorney. The FBI didn't immediately return a call seeking comment.

If convicted, the defendants each face a maximum penalty of 15 years in federal prison.

    4 California Men Charged in Terror Plot, FBI Says, NYT, 20.11.2012,






Man Convicted of a Terrorist Plot

to Bomb Subways Is Sent to Prison for Life


November 16, 2012
The New York Times


A man who was convicted of plotting with two friends to carry out a coordinated suicide attack on New York City subways was sentenced to life in prison on Friday.

Federal authorities deemed the plan one of the most dangerous terrorist plots against the city.

The man, Adis Medunjanin, 28, who was born in Bosnia and grew up in Queens, was considered the heart and soul of the plot — though not its mastermind — the one whose increasingly radical beliefs in Islam inspired him and two high school friends to participate in jihad. They went to Pakistan with the hope of joining the Taliban in the fight against American troops and wound up at a training camp run by Al Qaeda.

During the brief sentencing hearing in Federal District Court in Brooklyn on Friday, Mr. Medunjanin, wearing a crumpled black suit, and his long hair swept behind his ears, spent several minutes singing verses from the Koran.

Judge John Gleeson politely interrupted once, telling Mr. Medunjanin that while the life sentence was mandatory for a conviction for plotting to use an explosive device, he had the opportunity to argue for leniency on other counts. But Mr. Medunjanin, who maintained throughout the trial that he was never part of the subway bombing plot, followed his Koran recitations with a description of what he considered the darker sides of American foreign policy: abuse of prisoners at Abu Ghraib, the use of waterboarding and the killing of innocent civilians during the Iraq war. He closed with an exclamation.

“I had nothing to do with any subway plot or bombing plot whatsoever,” he said. “I ask Allah to release me from prison.”

Judge Gleeson, who expressed bafflement that a young man from a good family could take such a violent turn, said he heard Mr. Medunjanin’s claim that he was not involved with the subway plot — saying the government’s evidence was “least strong” on those charges — but pushed the defendant for “recognition on his part on how atrocious these crimes were.” None came.

“You’ve become more of an object, more of an exhibit of the path you chose than the thinking, feeling, loving brother and son that you used to be,” Judge Gleeson said. “You’re asking me to sentence you like the committed, anti-American jihadist you want to be for the rest of your life.”

Judge Gleeson added 95 years to the mandatory life sentence.

Although his two friends, Najibullah Zazi and Zarein Ahmedzay, pleaded guilty to participating in the plot, Mr. Medunjanin maintained his innocence and went to trial. He was convicted of conspiring to use weapons of mass destruction and conspiring to commit murder abroad, as well as of providing material support to Al Qaeda and receiving military training from Al Qaeda, among other charges.

The split between the three friends made for a riveting trial last spring, with Mr. Zazi and Mr. Ahmedzay testifying against their old friend and describing in open court the inner workings of a Qaeda-inspired attack. Mr. Zazi and Mr. Ahmedzay have not yet been sentenced.

In August 2008, Mr. Medunjanin traveled with Mr. Zazi and Mr. Ahmedzay to Peshawar, Pakistan, intent on joining the Taliban in their fight against American solders in Afghanistan. But they were unable to find someone to take them to the front lines, and were instead recruited by senior Qaeda members, who convinced them they would be more useful staging an attack in the United States and taught them how to make bombs with household materials.

The group abandoned the plot days before the attack was to happen, when they discovered that they were under surveillance by law enforcement officials. Mr. Zazi, who had taken a leading role and assembled the explosive materials, was arrested that month, and Mr. Ahmedzay and Mr. Medunjanin several months later, after an investigation by the Joint Terrorism Task Force, which includes members of the Federal Bureau of Investigation and the New York Police Department.

Mr. Medunjanin’s actions before his arrest were held up as a sign of the seriousness of the men’s intent. While driving his car, he called 911 and delivered what prosecutors called a common jihadist motto: “We love death more than you love life.” Moments later, he deliberately crashed into another vehicle on the Whitestone Bridge, in what prosecutors called a failed suicide attack.

    Man Convicted of a Terrorist Plot to Bomb Subways Is Sent to Prison for Life, NYT, 16.11.2012,






Terrorist Attack on Power Grid

Could Cause Broad Hardship, Report Says


November 14, 2012
The New York Times


WASHINGTON — Terrorists could black out large segments of the United States for weeks or months by attacking the power grid and damaging hard-to-replace components that are crucial to making it work, the National Academy of Sciences said in a report released Wednesday.

By blowing up substations or transmission lines with explosives or by firing projectiles at them from a distance, the report said, terrorists could cause cascading failures and damage parts that would take months to repair or replace. In the meantime, it warned, people could die from the cold or the excessive heat, and the economy could suffer hundreds of billions of dollars in damage.

While the report is the most authoritative yet on the subject, the grid’s vulnerability has long been obvious to independent engineers and to the electric industry itself, which has intermittently tried, in collaboration with the Department of Homeland Security, to rehearse responses.

Of particular concern are giant custom-built transformers that increase the voltage of electricity to levels suited for bulk transmission and then reduce voltage for distribution to customers. Very few of those transformers are manufactured in the United States, and replacing them can take many months.

In a preparedness drill in March, technicians shipped three specially designed transformers from St. Louis to Houston and rapidly installed them in a marathon effort. The transformers were the electrical equivalent of a Swiss Army knife, with multiple attachments so that they can be used in a variety of jobs.

They are functioning well, said one of the experiment’s supervisors, Richard J. Lordan, a senior technical expert at the Electric Power Research Institute, a nonprofit consortium based in Palo Alto, Calif. But follow-up steps — like figuring out how many such transformers should be stockpiled as well as developing storage depots, financing purchases of the equipment and planning how to allocate it in an emergency — have yet to be taken.

Changes in the electric industry have made the grid more vulnerable in recent years, experts say. The grid was mostly built to serve the needs of individual utilities, but regulators have cut the generation companies loose from the companies that transport and distribute power to foster a competitive market. That has resulted in far more electricity being shipped much greater distances and in difficulty winning consensus to build new lines. Meanwhile, the Sept. 11 attacks and weather catastrophes like Hurricane Sandy have underlined the need for ever more vigilant monitoring and technological improvements.

“I don’t think we pay quite enough attention to the technology fixes that would allow us to make the power system more resilient,” said Clark W. Gellings, a researcher at the Electric Power Research Institute who is one of the report’s authors.

For example, the report broaches the development of submersible electric switches that could be operated after a hurricane. Some of the other technologies that have been suggested, like more sensors to help operators determine the status of transformers and transmission lines, would also help the grid on an average summer day.

The report urges that cheaper ways be found to put power lines underground, which would protect them from some effects of storms, and also calls for changes in infrastructure that would reduce the kind of mutual dependencies that result in wider blackouts. For example, more traffic lights could run on high-efficiency L.E.D. lamps and be equipped with batteries, and small generators could be placed in spots where power is needed for pumping water. The natural gas system could be equipped with pumps that run on natural gas instead of electricity so that the system would survive an extended blackout.

The notion of a looming attack on the grid has recently gained a conservative political following, with Newt Gingrich, who sought the 2012 Republican presidential nomination, championing a novel that imagines the crippling of the nation and the starvation of millions by unidentified enemies using high-tech methods to fry components of the grid with an electromagnetic pulse. The report does not discuss that possibility, but the appendix does include “electromagnetic pulse” among other technical terms.

The National Academy of Sciences report mainly refers to less sophisticated attacks but also warns of cyberattacks or infiltration of the grid’s transmission operators. “Even a few pernicious people in the wrong place are a potential source of vulnerability,” it said.

The report was completed in 2007, and after reviewing it, the Department of Homeland Security decided to classify its contents. The version released on Wednesday is redacted to avoid handing terrorists a “cookbook” on how to disrupt the grid, the report said.

Mr. Gellings, the researcher, said that despite the delay, most of the points it makes are still valid, although a chapter on cyberattacks is out of date.

    Terrorist Attack on Power Grid Could Cause Broad Hardship, Report Says, NYT, 14.11.2012,






Surveillance and Accountability


October 28, 2012
The New York Times

Nearly seven years after the disclosure of President George W. Bush’s secret program of spying on Americans without a warrant, the Supreme Court is about to hear arguments on whether judges can even consider the constitutionality of doing this kind of dragnet surveillance without adequate rules to protect people’s rights.

President Obama’s solicitor general, Donald Verrilli Jr., will be calling on the court to toss out the case based on a particularly cynical Catch-22: Because the wiretaps are secret and no one can say for certain that their calls have been or will be monitored, no one has standing to bring suit over the surveillance. The United States Court of Appeals for the Second Circuit rejected that avoidance of accountability, and so should the Supreme Court.

The lawsuit the Justice Department is trying so hard to block concerns the 2008 statute amending the Foreign Intelligence Surveillance Act. The new law retroactively approved Mr. Bush’s legally dubious warrantless wiretapping and conferred immunity from prosecution on the telephone companies that cooperated in the program.

The measure gave the government broad and unprecedented power to intercept the communications of Americans without individualized warrants based on probable cause or any administrative finding of a terrorism connection. It lowered the burden of proof for government wiretapping of suspects, weakened judicial supervision, and failed to set adequate limits on retention and dissemination of acquired information. The statute discarded traditional constitutional protections for the privacy of innocent people, and chilled the exercise of the core democratic rights of free speech and association.

It would not require a legal stretch for the court to find that the plaintiffs had standing to sue. The plaintiffs are lawyers and human rights, labor, legal and media organizations engaged in work that requires them to be in communication with colleagues, clients, journalistic sources, victims of human rights abuses and others outside the United States. They have a reasonable fear of government monitoring of sensitive conversations, based on the law’s vacuum-cleaner approach to surveillance and the identities and locations of their contacts.

They have taken expensive and burdensome steps to avoid the risk of government eavesdropping, demonstrating tangible injury. For lawyers, an ethical obligation to safeguard client confidences requires such protective actions. Under existing Supreme Court doctrine, plaintiffs who have been harmed by government conduct are allowed to bring suit, even if, as here, they may not be direct targets. As the Supreme Court recognized in an important 1972 case, the invoking of national security to justify warrantless surveillance only heightens the need for searching judicial review.

Technically, the only question before the court is the fairly narrow-sounding issue of standing that it has agreed to hear. But should the court acquiesce to the government’s cramped reading of standing, the larger implications should be clear to everyone. As a practical matter, it would foreclose any meaningful judicial review of the warrantless wiretapping statute, perhaps permanently. The damage to the nation’s system of checks and balances, which relies on independent court scrutiny of laws as a safeguard against legislative and executive branch overreaching that disrespects constitutional rights, would be serious.

    Surveillance and Accountability, NYT, 28.10.2012,






Shifting Mood May End Blank Check for U.S. Security Efforts


October 24, 2012
The New York Times


WASHINGTON — Last week, a Bangladeshi student was charged in an F.B.I. sting operation with plotting to blow up the Federal Reserve Bank in New York. A Somali-American man was convicted of sending young recruits from Minneapolis to a terrorist group in Somalia. In Libya, extremists responsible for the killing of four Americans last month in Benghazi remained at large.

The drumbeat of terrorism news never quite stops. And as a result, for 11 years since the Sept. 11 attacks, the security colossus constructed to protect the nation from Al Qaeda and its ilk has continued to grow, propelled by public anxiety, stunning advances in surveillance technology and lavish spending — about $690 billion over a decade, by one estimate, not including the cost of the wars in Iraq and Afghanistan.

Now that may be changing. The looming federal budget crunch, a sense that major attacks on the United States are unlikely and new bipartisan criticism of the sprawling counterterrorism bureaucracy may mean that the open checkbook era is nearing an end.

While the presidential candidates have clashed over security for American diplomats in Libya, their campaigns have barely mentioned domestic security. That is for a reason: fewer than one-half of 1 percent of Americans, in a Gallup poll in September, said that terrorism was the country’s most important problem.

But the next administration may face a decision: Has the time come to scale back security spending, eliminating the least productive programs? Or, with tumult in the Arab world and America still a prime target, would that be dangerous?

Many security experts believe that a retrenchment is inevitable and justified.

“After 9/11, we had to respond with everything we had, not knowing what would work best,” said Rick Nelson, a former Navy helicopter pilot who served in several counterterrorism positions and is now at the Center for Strategic and International Studies. “That’s a model we can no longer afford, financially or politically.”

Michael V. Hayden, who led both the National Security Agency and the Central Intelligence Agency in the years after the Sept. 11 attacks, agrees that the time will come for security spending to be scaled back and believes that citizens need to decide when that should happen. Personally, he would wait a while longer.

“I would stand fast for now,” said Mr. Hayden, who is an adviser to Mitt Romney.

In the view of most specialists, the danger to United States territory from Al Qaeda and its allies is far less than it was in 2001. Al Qaeda’s leaders have been relentlessly hunted, its ideology was rejected by most of the young Muslims who led the Arab revolts, and its recruits in the United States have been few. Of more than 160,000 homicides in the country since Sept. 11, 2001, just 14 were carried out by Qaeda sympathizers in the name of jihad.

Some of the credit is no doubt due to domestic security efforts, which cost $470 billion in federal money, $110 billion in state and local budgets and $110 billion in private-sector spending from 2002 to 2011, according to John Mueller, a political scientist at Ohio State University. That money has paid for an alphabet soup of new agencies: the Department of Homeland Security, the Office of the Director of National Intelligence, the National Counterterrorism Center, the Terrorist Screening Center and many others, each with a supporting cast of contractors. Old agencies like the C.I.A. and the F.B.I. have bulked up, and a record 4.8 million people hold security clearances.

Any move to trim the counterterrorism bureaucracy will face daunting opposition. Some Americans will worry that cutbacks could put them at risk. Members of Congress will fear being labeled soft on terrorism. Lobbyists will fight to protect the lucrative domestic security sector.

For years, counterterrorism programs have been met mostly with cheerleading on Capitol Hill, despite billions spent on programs that turned out to be troubled or ineffective: “puffer” machines for airport screening that were warehoused, a high-tech surveillance program on the border with Mexico that was shut down, costly machines to sniff city air for biological weapons that produced too many false positives.

No previous Congressional criticism of counterterrorism programs, however, has been quite so scathing as a bipartisan Senate subcommittee report this month on more than 70 “fusion centers” nationwide, created to help federal, state and local authorities share threat information. The two-year investigation found that the centers had failed to help disrupt a single terrorist plot, even as they spent hundreds of millions of taxpayer dollars and infringed on civil liberties.

But the reaction to the report illustrated why it will be difficult to cut even marginal programs. Senior senators, the Department of Homeland Security and a half-dozen law enforcement groups rushed to criticize the report and defend the centers, which, not coincidentally, provide jobs and spending in every state.

Philip B. Heymann, a Harvard law professor and a former deputy attorney general, said that after every war there had been an adjustment that shrank the security establishment and eased wartime controls to restore the balance of power between the government and the citizenry.

“If you want the America we built over 200 years, we always have to be looking for ways to ratchet back these controls when it’s safe,” said Mr. Heymann, who is writing a book on the subject. “If we tried, we could find a number of places where we could move back toward the normal of 2000 without reducing security.”

Like other intelligence officials after 2001, Mr. Hayden was whipsawed by public wrath: first, for failing to prevent the Sept. 11 attacks, and then, a few years later, for having permitted the National Security Agency to eavesdrop on terrorism suspects in the United States without court approval.

Perhaps, as a result, he often says that the American people need to instruct the government on where to draw the line. He told an audience at the University of Michigan last month, for instance, that while a plot on the scale of the Sept. 11 attacks was highly unlikely, smaller terrorist strikes, like the shootings by an Army psychiatrist at Fort Hood in Texas in 2009, could not always be stopped.

“I can actually work to make this less likely than it is today,” Mr. Hayden said. “But the question I have for you is: What of your privacy, what of your convenience, what of your commerce do you want to give up?”

A big problem for Mr. Hayden’s formula is government secrecy, which makes it tough for any citizen to assess counterterrorism programs, their value and their intrusion on people’s privacy. Ubiquitous new technology has made it far easier for agencies to keep watch on Americans, using cellphones that track location, Internet monitoring, video surveillance cameras, facial recognition software and license plate readers. And the government increasingly taps into the huge amounts of data that companies gather.

“I think the greatest threat to privacy these days is the enormous amount of data in the hands of private companies that could be misused — either by the government or by companies,” said John Villasenor, an electrical engineer at the University of California, Los Angeles, who studies the social impact of technology. “Today almost everything we do is recorded by default.”

Consider the counterterrorism databases that the F.B.I. has built, largely in secret, with names like Investigative Data Warehouse and Foreign Terrorist Tracking Task Force Data Mart. One public glimpse — a heavily redacted 2006 list of materials in the Data Mart obtained by Wired magazine under the Freedom of Information Act — suggests the sweep of information being gathered: sprawling data collections from dozens of government agencies, on subjects like suspicious bank transactions and lost passports; voluminous records from commercial data collectors like Acxiom, ChoicePoint and Accurint (which alone accounted for 175 million entries); even hotel guest records.

An F.B.I. spokesman, Christopher M. Allen, declined to provide a current list of data in the system. But he said F.B.I. rules gave “greater overall protections for privacy than the law requires” and were strictly enforced by bureau lawyers.

Such official assurances do not comfort civil libertarians. Marc Rotenberg, the executive director of the Electronic Privacy Information Center, a Washington watchdog group, said that the easing of government incursions on privacy and rights that traditionally followed a war may not come this time, because the technology-driven “architecture of surveillance and security” remained in place.

“We’re still left with this largely unaccountable infrastructure,” Mr. Rotenberg said. “As long as we don’t begin to dismantle that, I’m not sure we will ever move past 9/11.”

    Shifting Mood May End Blank Check for U.S. Security Efforts, NYT, 24.10.2012,






New Sentence Is Imposed in Bomb Plot From 1999


October 24, 2012
The New York Times


SEATTLE — A terrorism case that predated the 9/11 attacks, but then became bound up by courts wrestling with the altered post-9/11 landscape of threat and deterrence, was back before a federal judge here on Wednesday. And the judge tried, for a third time, to impose a prison sentence that would stick.

Ahmed Ressam, known as the millennium bomber, was convicted of plotting to detonate a bomb at Los Angeles International Airport on New Year’s Eve 1999. He was sentenced twice before by Judge John C. Coughenour of Federal District Court in Seattle, to 22 years in prison each time; both sentences were overturned by federal appeals court panels.

On Wednesday, Judge Coughenour increased Mr. Ressam’s total to 37 years but refused again to impose the maximum term, life in prison, that federal prosecutors had asked for. In his questions to the lawyers and in the text of his sentencing opinion, the judge had harsh words for the government’s shifting of position over the years — asking for increasingly heavier penalties on Mr. Ressam despite acknowledging the value of his cooperation in providing information about international terrorism and Al Qaeda, the group Mr. Ressam said had trained him in preparing his attack.

Mr. Ressam, 45, an Algerian, was arrested in Washington State in December 1999 with bomb components, which he had transported across the border from Canada aboard a passenger ferry.

“The threat of terrorism is twofold. It threatens our security, and it challenges our values,” the judge said. “Paramount among our values is justice for all persons, no matter how dangerous or reviled.”

The United States attorney for Western Washington, Jenny A. Durkan, declined to say whether the sentence would be appealed.

At a news conference, she said that perspectives on global terrorism had changed since 1999. Prosecutors at previous times asked for a 35-year sentence, a 45-year sentence and finally, in Wednesday’s proceeding, life behind bars. “Our innocence was shattered in September of 2001,” Ms. Durkan said. Mr. Ressam came through the legal system before that, she added, “at a time when we understood the devastating nature of his attack, but we perhaps did not appreciate the potency of Al Qaeda and those that he had sworn allegiance to. That has changed forever.”

The public defender who represented Mr. Ressam, Thomas W. Hillier, said he thought prosecutors would almost certainly not appeal. Mr. Ressam, who has already served almost 13 years in prison, would be 63 or 64 at release, assuming a five- or six-year reduction for good behavior, Mr. Hillier said, and would almost certainly be deported to Algeria at that time.

Prosecutors said that Mr. Ressam had changed during his incarceration. He stopped working with investigators in 2003 and later recanted his previous statements. That suggests, they said, that Mr. Ressam would be a threat once more if released, however old he is.

But Judge Coughenour said in his sentence that he was also taking into account the harsh conditions of solitary confinement in which Mr. Ressam has spent much of the past decade. He said he was convinced that the repudiation of past statements “was not measured obstructionism but a deranged protest.”

If the harsh terms of the punishment changed Mr. Ressam and led to a halt in cooperation — and the judge said he was convinced that it had — then the court had an “ethical responsibility” not to inflict additional punishment because of the consequences of punishment.

“I will not sentence a man to 50 lashes with a whip and then 50 more for getting blood on the whip,” he said.

    New Sentence Is Imposed in Bomb Plot From 1999, NYT, 24.10.2012,






Man Is Charged With Plotting

to Bomb Federal Reserve Bank in Manhattan


October 17, 2012
The New York Times


Federal prosecutors in Brooklyn charged a 21-year-old Bangladeshi man with conspiring to blow up the Federal Reserve Bank of New York, saying he tried to remotely detonate what he believed was a 1,000-pound bomb in a van he parked outside the building in Lower Manhattan on Wednesday.

But the entire plot played out under the surveillance of the Federal Bureau of Investigation and the New York Police Department as part of an elaborate sting operation, according to court papers.

The man, Quazi Mohammad Rezwanul Ahsan Nafis, who arrived in the United States in January on a student visa, tried to make contacts and recruit people to form a terrorist cell to help him carry out an attack, according to a criminal complaint in the case. But one of these recruits was an F.B.I. informer, who later introduced him to an undercover F.B.I. agent who helped him with the plot.

In addition, the complaint said, Mr. Nafis spoke of a desire to “attack and kill” a high-ranking government official. A senior law enforcement official said Wednesday night that the official was President Obama, but that Mr. Nafis’s desire never got past the talking stage.

Mr. Nafis was charged with conspiring to use weapons of mass destruction and providing material support to Al Qaeda. He could face up to life in prison if convicted.

Mr. Nafis arrived at Federal District Court in Brooklyn, looking boyish despite his trim beard. He spoke quietly when answering the questions of the magistrate judge, Roanne L. Mann.

The case appears to be the latest to fit a model in which, in the process of flushing out people they believe present a risk of terrorism, federal law enforcement officials have played the role of enabler. Agents and informers have provided suspects with encouragement, guidance, money and even, the subjects of the sting operations are led to believe, the materials needed to carry out an attack. Though these operations have almost always held up in court, they have come under increasing criticism from those who believe that many of the subjects, even some who openly espoused violence, would have been unable to execute such plots without substantial assistance from the government.

Both F.B.I. leaders and federal prosecutors have defended the approach as valuable in finding and stopping people predisposed to commit terrorism.

In a prominent case in 2009, several men, urged by an unusually persistent government informer, planted what they believed to be homemade bombs in front of synagogues in the Riverdale section of the Bronx. Four men were convicted, but the judge who oversaw the trial also criticized the law enforcement agents who helped push the plot forward: “The government made them terrorists.”

The court papers describe Mr. Nafis as a man of persistence, who wanted to be respected by Al Qaeda leaders.

The undercover agent began meeting with Mr. Nafis in July, first in Central Park and later in hotels in Queens, secretly recording Mr. Nafis’s statements. Mr. Nafis had grand but vague plans, according to the indictment. “I don’t want something that’s like, small. I just want something big,” he said, according to the complaint. “Very, very, very, very big, that will shake the whole country.”

He settled on the financial district as a target, hoping to shake the American economy. The original plan was for a suicide mission but that changed when Mr. Nafis said he wanted to go home to Bangladesh first to put his affairs in order. The undercover agent told Mr. Nafis that he could use a remote-control device, so that he could stage the attack and then return to Bangladesh.

On Wednesday morning, they drove to a warehouse and assembled the fake bomb, placing supposedly explosive material in trash bins they had bought, then putting the bins in a van, according to the complaint. They assembled a fake detonator that was to be triggered by a cellphone and drove to the fortresslike Federal Reserve Bank of New York, the largest bank structure in the world when it was completed in 1924, about two blocks from Wall Street.

Mr. Nafis and the undercover agent parked the van outside the bank and walked to a nearby hotel, where Mr. Nafis recorded a video statement addressed to the American people, which he planned to publicize after the attack. In the statement, he said, “We will not stop until we attain victory or martyrdom.”

Then he tried again and again to detonate the bomb, dialing the cellphone repeatedly until agents arrested him.


Eric Schmitt contributed reporting.

    Man Is Charged With Plotting to Bomb Federal Reserve Bank in Manhattan, NYT, 17.10.2012,






Defendants in Sept. 11 Case Cooperate

as Proceedings Resume at Guantánamo


October 15, 2012
The New York Times


FORT MEADE, Md. — The Sept. 11 war-crimes case before a military commission at Guantánamo Bay, Cuba, resumed relatively smoothly on Monday as five men accused of being co-conspirators in the attacks were calm and cooperative in the first session of a weeklong pretrial hearing.

Khalid Shaikh Mohammed, the self-described mastermind of the Sept. 11, 2001, attacks, and the other four defendants each spoke directly — some through a translator — with the judge, Col. James L. Pohl of the Army. The atmosphere on the first day contrasted sharply with a chaotic arraignment hearing in May, when they refused to answer the judge’s questions.

On Monday, when the judge asked each whether he understood his right to decide not to attend sessions of the commission — and that choosing to stay away could damage his defense — each replied to him.

“Yes, but I don’t think there is any justice in this court,” Mr. Mohammed said.

The military installed small speakers that quietly broadcast a simultaneous Arabic translation near the seats of the five defendants. In May, the five men refused to wear their headphones, forcing translators to repeat every utterance in Arabic over courtroom loudspeakers, further slowing the proceedings.

Monday’s session began a hearing of pretrial motions scheduled to last through the week at the high-security courtroom erected at Guantánamo for the long-delayed trial. The proceedings were shown to reporters at the base and those watching via a closed-circuit feed at Fort Meade outside Washington. The remote feed had a 40-second delay, giving the military the option of censoring any statement it deemed to include classified information.

The change from the chaotic May session was apparent early as two co-defendants, Mustafa Ahmed al Hawsawi and Ramzi bin al Shibh, spoke through translators directly with Colonel Pohl when he asked about a possible conflict of interest in Mr. al Hawsawi’s defense team, which included Cmdr. Suzanne Lachelier of the Navy, who had represented Mr. bin al Shibh several years ago. The judge insisted that the defendants answer for themselves, and they did.

“I have no objection for Miss Lachelier to assist my brother Mustafa if he wants her,” Mr. bin al Shibh told Colonel Pohl, gesturing with his right hand, fingers upstretched.

The judge also appeared to be stricter with the defense lawyers than he had been in May. During a discussion over whether detainees could refuse to come to court — prosecutors had asked the judge to compel their attendance — Colonel Pohl refused repeated attempts by Capt. Michael Schwartz of the Air Force, a lawyer for Walid bin Attash, to discuss torture, saying it was not relevant to the question.

In the subsequent exchanges between the judge and the defendants about their right to stay away from court, Colonel Pohl also made sure they understood that their trial would proceed without their participation if they managed to escape, an unlikely prospect that prompted several to question their translators and lawyers before answering.

Each defendant wore loose, white garb. Mr. Mohammed wore a gray vest and had a long, bushy, red, henna-dyed beard and wore a turban he had fashioned out of white cloth. Mr. bin Attash also had a turban and vest. Mr. bin al Shibh had tied a reddish cloth around his head that draped over his right shoulder. Mr. al Hawsawi appeared to be wearing a white cap and a patterned scarf. Ali Abd al Aziz Ali initially wore no cover over his slightly balding black hair, but later donned a round hat.

The first day of the hearing did not address one of the highest-profile disputes on the docket: a proposed protective order for secret information that says that anything the detainees may say about their own “conditions of confinement” in the custody of the Central Intelligence Agency or to the “enhanced interrogation techniques” to which they were subjected would be classified.

The American Civil Liberties Union has objected to that rule, and also to the 40-second delay for reporters, relatives of the victims and members of the public watching from the other side of soundproof windows at the back of the courtroom or via the closed-circuit delay at remote sites. A coalition of news organizations, including The New York Times, has also objected to restricting public access.

Defense lawyers are also complaining about working conditions at the base after mold and rat droppings were found in their main offices. Cheryl Bormann, a civilian lawyer for Mr. bin Attash, wore black Muslim dress that covered everything but her face as she stood to say that their other workroom had four computers for eight members of the defense team to use.

In May, she told reporters that she always dressed that way in the presence of her client to help him stay focused on a case that could end in his execution.

    Defendants in Sept. 11 Case Cooperate as Proceedings Resume at Guantánamo, NYT, 15.10.2012,






The Face of Indefinite Detention


September 14, 2012
The New York Times


BEFORE he died on Sept. 8, Adnan Farhan Abdul Latif had spent close to 4,000 days and nights in the American prison at Guantánamo Bay, Cuba. He was found unconscious, alone in his cell, thousands of miles from home and family in Yemen.

Eleven years ago, he found himself in Afghanistan at the wrong place and the wrong time. It was an unusual set of events that took him there. Years earlier Mr. Latif had been badly injured in a car accident in Yemen. His skull was fractured; his hearing never quite recovered. He traveled to Jordan, seeking medical treatment at a hospital in Amman; then, following the promise of free medical care from a man he met there, journeyed to Pakistan, and eventually to Afghanistan.

Like so many men still imprisoned at Guantánamo, Mr. Latif was fleeing American bombing — not fighting — when he was apprehended by the Pakistani police near the Afghan border and turned over to the United States military. It was at a time when the United States was paying substantial bounties for prisoners. Mr. Latif, a stranger in a strange land, fit the bill. He was never charged with a crime.

The United States government claims the legal authority to hold men like Mr. Latif until the “war on terror” ends, which is to say, forever. Setting aside this troubling legal proposition, his death and the despair he endured in the years preceding it remind us of the toll Guantánamo takes on human beings.

Adnan Latif is the human face of indefinite detention.

In the landmark 2008 case Boumediene v. Bush, the Supreme Court ruled that Guantánamo detainees were entitled to “meaningful judicial review” of the legality of their detentions, via the writ of habeas corpus — a constitutional check obligating the government to demonstrate a sufficient factual and legal basis for imprisoning someone. The Boumediene decision, in principle, ought to have given hope to Mr. Latif and men like him.

And it was under such principle that two years later, a United States District Court judge hearing Mr. Latif’s habeas corpus petition ordered him released, ruling that the accusations against him were “unconvincing” and that his detention was “not lawful.” By that time, Mr. Latif had been cleared for release from Guantánamo on three separate occasions, including in 2009 by the Obama administration’s multiagency Guantánamo Review Task Force.

Nevertheless, the Department of Justice appealed the district court’s decision to the United States Court of Appeals for the District of Columbia Circuit — which has ruled in the government’s favor in nearly every habeas corpus appeal it has heard. The appellate court reversed the trial judge’s release order, effectively ruling that evidence against detainees must be presumed accurate and authentic if the government claims it is.

A strong dissenting opinion criticized the appellate court majority for not just “moving the goal posts,” but also calling “the game in the government’s favor.”

But Mr. Latif didn’t see it as a game. He was dying inside. Like other men, he had been on a hunger strike to protest his detention. After losing the appeal of his case, he told his lawyer, “I am a prisoner of death.”

Three months ago, the Supreme Court declined to hear the appeals of Mr. Latif and six other detainees, who pleaded for the court to restore its promise of meaningful review of their cases.

But what is unsaid in all of the court rulings is that Mr. Latif was imprisoned not by evidence of wrongdoing, but by accident of birth. In Guantánamo’s contorted system of justice, the decision to detain him indefinitely turned on his citizenship, not on his conduct.

With Mr. Latif’s death, there are now 56 Yemenis who have been cleared for release by the Guantánamo Review Task Force since 2009 but who remain in prison. President Obama, citing general security concerns, has imposed a moratorium on any and all transfers to Yemen, regardless of age, innocence or infirmity.

It is fair, and regrettable, to assume that some of these detainees will die there as well.

Mr. Latif, after all, was the ninth man to die at Guantánamo. More men have died in the prison camp than have been convicted by a civilian court (one) or by the military commissions system in Guantánamo (six). In 2006, Salah al-Salami, a Yemeni, and Yasser al-Zahrani and Mani al-Utaybi, both Saudis, were the first men to die at Guantánamo. Their deaths were called suicides, even though soldiers stationed at the base at the time have raised serious questions about the plausibility of the Defense Department’s account. (Full disclosure: the Center for Constitutional Rights represents the families of two of the men who died.)

According to the government, three more detainees committed suicide and two others died of natural causes. There has been no independent investigation into any of the deaths, however; there has been no accountability for a range of constitutional and human rights violations at Guantánamo.

The government has not yet identified the cause of Mr. Latif’s death, but it is Guantánamo that killed him. Whether because of despair, suicide or natural causes, death has become an inevitable consequence of our politically driven failure to close the prison — a natural byproduct of the torment and uncertainty indefinite detention inflicts on human beings.

The case of Adnan Latif should compel us to confront honestly the human toll of the Guantánamo prison — now approaching its 12th year in operation. We can start this reckoning by releasing the 86 other men at Guantánamo who the United States government has concluded no longer deserve to be jailed there.


Baher Azmy is the legal director of the Center for Constitutional Rights.

    The Face of Indefinite Detention, NYT, 14.9.2012,






At Ground Zero,

Readers Offer Plain-Spoken Tributes to Those Lost


September 11, 2012
The New York Times


This time, there were no presidents reading psalms, no sounds of Yo-Yo Ma’s cello echoing across the plaza, no national outpouring of decade-later reflections.

This time, the faces on the stage were almost all those of the 200 readers listing the dead, one by one, the names of cousins, brothers, mothers and husbands sounding for almost four hours over the twin reflecting pools that stand where the towers fell 11 years ago.

Other elements of the annual Sept. 11 ceremony at ground zero remained the same: a chorus of children’s voices, an honor guard carrying a battered flag salvaged from the World Trade Center, six moments of silence to mark the impact of planes crashing and buildings hitting the ground, three trumpeters closing the day’s commemoration with the haunting sound of taps. Outside the site, however, many places across the country had shrunk their anniversary ceremonies or chosen not to hold them at all.

But at the World Trade Center on Tuesday morning, the readers reminded the assembled crowd of relatives, friends, police officers, firefighters and politicians that even if the rest of the country seemed ready to move on, their grief, at least on this day, was still vivid.

“Mark, they say time heals all wounds,” said Joanne Hindy, who read the name of her nephew, Mark D. Hindy. “It’s not true, Mark. We love you dearly and miss you more, Mark.”

Politicians did attend, although none spoke, under rules that Mayor Michael R. Bloomberg imposed for the ceremony this year.

Some victims’ relatives, like Angela Pesce, whose son Danny Pesce died on Sept. 11, said they were glad the politicians had been excluded this year. Others said it did not matter.

“To me, it’s not a good or bad feeling,” said Michael Lira, whose brother, Kenneth Lira, worked as a network engineer in the World Trade Center. “I’m going to come here to remember my brother anyway.”

The anniversary of the attacks led to a brief halt in the presidential campaign.

President Obama observed a moment of silence at the White House before heading to the Pentagon, while Vice President Joseph R. Biden Jr. flew to Pennsylvania, where one of four hijacked planes crashed in Shanksville after passengers fought back.

While the president and Mitt Romney, the Republican presidential nominee, suspended advertising for the day in deference to sensibilities, they made no effort to duplicate the show of unity that Mr. Obama and Senator John McCain, then his Republican opponent, staged in 2008 when they appeared together.

Instead, Mr. Obama appeared with Michelle Obama, passing through a Marine color guard onto the South Lawn of the White House, where hundreds of staff members waited silently at 8:46 a.m., the time the first plane hit the World Trade Center. Three bells tolled. The president and first lady bowed their heads, then looked up and put hands over their hearts as a trumpeter played taps.

“No matter how many years pass, no matter how many times we come together on this hallowed ground, know this — that you will never be alone,” Mr. Obama told relatives of the slain at the Pentagon. “Your loved ones will never be forgotten. They will endure in the hearts of our nation, because through their sacrifice, they helped us make the America we are today — an America that has emerged even stronger.”

Mr. Romney, who greeted first responders in Chicago, released a statement: “On this most somber day, those who would attack us should know that we are united, one nation under God, in our determination to stop them and to stand tall for peace and freedom at home and across the world.”

At ground zero, the absence of readings, prayers, speeches or anything but music, bells and names from the program meant the ceremony was dominated by personal tributes from relatives to their dead.

The names varied, but the messages were nearly all the same, repeated by children who never knew their fathers, and wives who lost their husbands, until they became a kind of refrain within the long list of the dead. When Angelina Jimenez read her mother’s name, adding a personal message in Spanish, her cracked, wavering voice made her meaning clear, even if not all could understand the words.

It was the same as all the others: We still love you. We still miss you. We have not forgotten.

“It’s been 11 years, and unfortunately, the reality of this day seems to be fading for some,” said Michael Reneo, tucking a framed photo of his sister-in-law, Daniela Notaro, into the crook of his arm. He spoke of how difficult it was for his family to move on, knowing that some of the planners of the attacks may still be alive.

“I hope we never forget, and more important, never forgive those responsible,” he said, drawing the loudest burst of applause of any reader.

A stately plaza may have replaced the ruins and rubble that covered the World Trade Center site for years after the attacks, but some readers spoke of the horror the site still evoked for them.

Kevin McAleese named his brother, Brian McAleese, and brother-in-law, Scott M. Kopytko. “We tried so hard to find you, and you remain here,” he said, calling the site “as much a cemetery and battlefield as a memorial.”

The most tangible reminders of how far the site had come in 11 years were the massive new buildings, sleek and encased in glass, that surround it.

But for all the progress, a small, dirt-streaked sign tacked to scaffolding near the base of 1 World Trade Center may better match the mood of those who gathered to remember Sept. 11.

“Freedom Tower,” it reads. “Never Forget Charles Costello. Never Forget 9-11-01.”


Peter Baker contributed reporting from Shanksville, Pa.,

and Washington, and Ashley Parker from Chicago.

    At Ground Zero, Readers Offer Plain-Spoken Tributes to Those Lost, NYT, 11.9.2012,






A Pointless Blacklisting


September 11, 2012
The New York Times


LAST week, the United States designated the Taliban-affiliated Haqqani network a “foreign terrorist organization,” placing it alongside Hamas and Al Qaeda. But to what end?

America and its allies have learned a lot over the past decade in Afghanistan. But some fundamentals have remained elusive and shrouded in stereotypes.

To brand a group a foreign terrorist organization is not only a firm declaration that it is an enemy; it also limits America’s future political options. Although it’s possible to be delisted, groups on such lists find it difficult to get off them. Moreover, labeling the Haqqanis terrorists dislodges them from the wider Taliban insurgency, making a comprehensive settlement harder to achieve.

The decisions we make today will shape and constrain our future policies. Between 2002 and 2004, for example, some senior Taliban leaders sought reconciliation and cooperation with the Afghan government and the international community. The negative responses they received left little room but to pursue the path of resistance. Likewise, listing the Haqqanis as an F.T.O. now will deter them from coming to the negotiating table. It will also be seen as a sign of American insincerity by the Taliban and thus play into the hands of those opposed to a conciliatory approach.

The Haqqanis are cast as calculating players in the continuing business of “global jihad” and have gained notoriety for their spectacularly violent attacks in Afghanistan, many targeting American troops. Being enmeshed in a universe of groups and individuals along the Afghan-Pakistani border, some of whom have sought to carry out attacks in and against foreign countries, doesn’t help their image. But the view that they are an irreconcilable, rigidly ideological enemy should be questioned.

The head of the Defense Intelligence Agency, Michael T. Flynn, said in 2010 that the group’s leader, Jalaluddin Haqqani, was “absolutely salvageable” and open to reconciliation. Graeme Lamb, a former commander of Britain’s Special Air Service, has characterized Mr. Haqqani as being a pragmatist “tied to the probability of outcomes” and called Afghanistan “the land of the deal.”

In recent years, the Haqqanis and people close to them have made contact with Afghan, American and other Western officials. Ibrahim Omari (sometimes called Ibrahim Haqqani), a younger brother of Mr. Haqqani, met with American officials in 2011 in Dubai. Another more recent meeting seems to have taken place (without Americans) in Saudi Arabia.

To suggest that they are implacable foes also ignores the long history of pragmatism and political calculations that have informed the Haqqani leaders’ actions for 40 years. Mr. Omari worked together with the Afghan government in 2002, although his efforts to broker discussions eventually led to his being arrested and allegedly tortured. Since the Taliban were ousted in 2001, American policy has often rested on an overestimation of the West’s ability to understand the situation in Afghanistan, leading to poor decisions and ineffective initiatives that have frequently been self-defeating.

The current war effort relies heavily on drones and night raids in Afghanistan and Pakistan, but these tactics often increase radicalization and enmity. And the industrial-scale targeting of midlevel Taliban commanders in Afghanistan has led to the rise of a younger, more uncompromising generation of leaders. The designation of the Haqqanis as an F.T.O. will only erode America’s relationship with Pakistan and decrease the likelihood of Pakistan’s playing a constructive role in facilitating (or not spoiling) any reconciliation process.

And the F.T.O. listing doesn’t matter much for the Haqqanis’ operations. After all, there can be no winner in the current stalemate. The military argument that the Taliban have lost momentum is a nonstarter. This is as true for the Haqqanis as it is for the whole insurgency. Many Afghans living in places like Kandahar don’t believe the relative calm of the past two years will last. Even in heavily secured cities like Kabul, attacks continue to be carried out.

Most of the senior Haqqani commanders and family members are already on international blacklists. They are involved in the Afghan conflict to secure for themselves a future political role. Only a political process that engages them, rather than systematically sidelining them, will help end the war. One possible starting point for such a process would be some form of cease-fire. Indeed, Britain’s Royal United Services Institute recently outlined the potential for such a general cease-fire agreement.

President Obama claims he has refocused America’s effort in Afghanistan on those who attacked us: Al Qaeda. But the misguided ideology of the war on terror is still dictating passions and policies in the United States. And Washington’s move to blacklist and marginalize the Haqqanis gravely threatens the prospects for a political settlement, which is the only way out of the Afghan conflict.


Alex Strick van Linschoten and Felix Kuehn are the authors

of “An Enemy We Created: The Myth of the Taliban-Al Qaeda Merger in Afghanistan.”

    A Pointless Blacklisting, NYT, 11.9.2012,






Military Identifies Guantánamo Detainee Who Died


September 11, 2012
The New York Times


WASHINGTON — The detainee who died on Saturday at the American military prison at Guantánamo Bay, Cuba, was a Yemeni man who had been ordered freed in 2010 by a Federal District Court judge but remained in captivity after the ruling was overturned by the Court of Appeals for the District of Columbia Circuit last year.

The military on Tuesday publicly identified the detainee, whose death was announced a day earlier, as Adnan Farhan Abdul Latif. He was captured at the Afghanistan-Pakistan border in December 2001 and was among the first detainees taken to the prison when the Bush administration opened it in January 2002.

Mr. Latif was found unresponsive in his cell and could not be revived, the military has said. An autopsy was performed, but the Naval Criminal Investigative Service has not yet made public its findings about how he died. The United States Southern Command, which oversees Guantánamo, is also conducting an investigation into the death.

“Autopsy results and cause of death determinations take time, and therefore are not available for release,” the military said in a statement. “Following the autopsy, a Muslim military chaplain, the Joint Task Force Guantánamo cultural adviser and Islamic volunteers from the staff were on hand to ensure the appropriate handling of the body.”

Mr. Latif was a former hunger striker who was in the “disciplinary” lockup for throwing bodily fluids on guards. He also had a history of depression and erratic behavior, including an episode in 2009 in which he threw his blood onto his volunteer lawyer, David Remes.

In an interview on Tuesday, Mr. Remes described Mr. Latif as a “talented poet and deeply devout” man who was “mentally fragile and was at times sedated, placed on suicide watch and sent to the prison’s psychological ward.” Mr. Remes said he last saw his client in May and had been planning to visit him again next week.

“Every hope held out to him was dashed,” Mr. Remes said. “He felt that his spirit was dying, that he couldn’t continue to bear his conditions.”

There was no dispute that Mr. Latif traveled from Yemen to Pakistan in August 2001 and later made his way to Afghanistan before trying to flee once the war began.

He claimed that he was sent to the region by a humanitarian aid worker to seek charitable medical treatment for problems stemming from a head injury he had suffered in a car accident in 1994. The military instead maintained that he had been recruited by a Qaeda figure to help the Taliban fight the Northern Alliance.

Still, the military did not see him as a particular threat. His classified assessment file, made public by WikiLeaks, showed that the military had recommended that he be released in December 2006 and again in January 2008. A detainee task force under President Obama also approved him for transfer, Mr. Remes said. But both the Bush and the Obama administrations were reluctant to repatriate detainees to Yemen because of poor security conditions, so he remained locked up.

The central piece of evidence against Mr. Latif was an intelligence report prepared shortly after his capture that said he had incriminated himself. In his habeas corpus lawsuit, the question was whether to credit that report as sufficient evidence to justify keeping him locked up indefinitely.

In 2010, Judge Henry H. Kennedy Jr. of Federal District Court in Washington wrote that the report was unreliable and granted his habeas corpus petition. While many details in his ruling were redacted, Judge Kennedy cited flaws with the report, noted that no other detainees said they had seen Mr. Latif at a safe house or training camp linked to Al Qaeda, and said Mr. Latif had presented a “plausible alternative story” for what he was doing in the region.

But last year, a divided three-judge panel for the District of Columbia Circuit vacated that ruling. Citing inconsistencies in Mr. Latif’s account, the two judges in the majority, Janice Rogers Brown and Karen LeCraft Henderson, also said the report was entitled to “a presumption of regularity.”

The ruling drew a sharp dissent from the third judge on the panel, David Tatel, who also focused on the flaws of the report. He faulted his colleagues for giving nearly conclusive weight to a sketchy report “produced in the fog of war,” saying their standard effectively required judges to accept as true virtually whatever the government claims, severely undermining a 2008 Supreme Court ruling granting the detainees habeas corpus rights.

In June, the Supreme Court declined to hear an appeal in Mr. Latif’s case without comment. Judges Kennedy and Tatel were both appointed by President Bill Clinton. Judge Henderson was appointed by President George Bush, and Judge Brown by President George W. Bush.

Mr. Latif was the ninth detainee known to have died at Guantánamo. Some prisoners apparently committed suicide, while others apparently died of natural causes. Mr. Latif’s death lowered the inmate population to 167.

    Military Identifies Guantánamo Detainee Who Died, NYT, 11.9.2012,






The Deafness Before the Storm


September 10, 2012
The New York Times


IT was perhaps the most famous presidential briefing in history.

On Aug. 6, 2001, President George W. Bush received a classified review of the threats posed by Osama bin Laden and his terrorist network, Al Qaeda. That morning’s “presidential daily brief” — the top-secret document prepared by America’s intelligence agencies — featured the now-infamous heading: “Bin Laden Determined to Strike in U.S.” A few weeks later, on 9/11, Al Qaeda accomplished that goal.

On April 10, 2004, the Bush White House declassified that daily brief — and only that daily brief — in response to pressure from the 9/11 Commission, which was investigating the events leading to the attack. Administration officials dismissed the document’s significance, saying that, despite the jaw-dropping headline, it was only an assessment of Al Qaeda’s history, not a warning of the impending attack. While some critics considered that claim absurd, a close reading of the brief showed that the argument had some validity.

That is, unless it was read in conjunction with the daily briefs preceding Aug. 6, the ones the Bush administration would not release. While those documents are still not public, I have read excerpts from many of them, along with other recently declassified records, and come to an inescapable conclusion: the administration’s reaction to what Mr. Bush was told in the weeks before that infamous briefing reflected significantly more negligence than has been disclosed. In other words, the Aug. 6 document, for all of the controversy it provoked, is not nearly as shocking as the briefs that came before it.

The direct warnings to Mr. Bush about the possibility of a Qaeda attack began in the spring of 2001. By May 1, the Central Intelligence Agency told the White House of a report that “a group presently in the United States” was planning a terrorist operation. Weeks later, on June 22, the daily brief reported that Qaeda strikes could be “imminent,” although intelligence suggested the time frame was flexible.

But some in the administration considered the warning to be just bluster. An intelligence official and a member of the Bush administration both told me in interviews that the neoconservative leaders who had recently assumed power at the Pentagon were warning the White House that the C.I.A. had been fooled; according to this theory, Bin Laden was merely pretending to be planning an attack to distract the administration from Saddam Hussein, whom the neoconservatives saw as a greater threat. Intelligence officials, these sources said, protested that the idea of Bin Laden, an Islamic fundamentalist, conspiring with Mr. Hussein, an Iraqi secularist, was ridiculous, but the neoconservatives’ suspicions were nevertheless carrying the day.

In response, the C.I.A. prepared an analysis that all but pleaded with the White House to accept that the danger from Bin Laden was real.

“The U.S. is not the target of a disinformation campaign by Usama Bin Laden,” the daily brief of June 29 read, using the government’s transliteration of Bin Laden’s first name. Going on for more than a page, the document recited much of the evidence, including an interview that month with a Middle Eastern journalist in which Bin Laden aides warned of a coming attack, as well as competitive pressures that the terrorist leader was feeling, given the number of Islamists being recruited for the separatist Russian region of Chechnya.

And the C.I.A. repeated the warnings in the briefs that followed. Operatives connected to Bin Laden, one reported on June 29, expected the planned near-term attacks to have “dramatic consequences,” including major casualties. On July 1, the brief stated that the operation had been delayed, but “will occur soon.” Some of the briefs again reminded Mr. Bush that the attack timing was flexible, and that, despite any perceived delay, the planned assault was on track.

Yet, the White House failed to take significant action. Officials at the Counterterrorism Center of the C.I.A. grew apoplectic. On July 9, at a meeting of the counterterrorism group, one official suggested that the staff put in for a transfer so that somebody else would be responsible when the attack took place, two people who were there told me in interviews. The suggestion was batted down, they said, because there would be no time to train anyone else.

That same day in Chechnya, according to intelligence I reviewed, Ibn Al-Khattab, an extremist who was known for his brutality and his links to Al Qaeda, told his followers that there would soon be very big news. Within 48 hours, an intelligence official told me, that information was conveyed to the White House, providing more data supporting the C.I.A.’s warnings. Still, the alarm bells didn’t sound.

On July 24, Mr. Bush was notified that the attack was still being readied, but that it had been postponed, perhaps by a few months. But the president did not feel the briefings on potential attacks were sufficient, one intelligence official told me, and instead asked for a broader analysis on Al Qaeda, its aspirations and its history. In response, the C.I.A. set to work on the Aug. 6 brief.

In the aftermath of 9/11, Bush officials attempted to deflect criticism that they had ignored C.I.A. warnings by saying they had not been told when and where the attack would occur. That is true, as far as it goes, but it misses the point. Throughout that summer, there were events that might have exposed the plans, had the government been on high alert. Indeed, even as the Aug. 6 brief was being prepared, Mohamed al-Kahtani, a Saudi believed to have been assigned a role in the 9/11 attacks, was stopped at an airport in Orlando, Fla., by a suspicious customs agent and sent back overseas on Aug. 4. Two weeks later, another co-conspirator, Zacarias Moussaoui, was arrested on immigration charges in Minnesota after arousing suspicions at a flight school. But the dots were not connected, and Washington did not react.

Could the 9/11 attack have been stopped, had the Bush team reacted with urgency to the warnings contained in all of those daily briefs? We can’t ever know. And that may be the most agonizing reality of all.


Kurt Eichenwald, a contributing editor at Vanity Fair

and a former reporter for The New York Times,

is the author of “500 Days: Secrets and Lies in the Terror Wars.”

    The Deafness Before the Storm, NYT, 10.9.2012,






When It Pays to Talk to Terrorists


September 3, 2012
The New York Times


Lexington, Ky.

TOMORROW marks the 40th anniversary of the 1972 Munich massacre in which Palestinian militants killed 11 members of the Israeli Olympic team. For many Westerners, the incident was the most chilling example of international terrorism before 9/11.

Munich — and the lessons learned from it — played a pivotal role in shaping American views on terrorism: Terrorists were bloodthirsty fanatics bent on spreading destruction and anarchy. Negotiation with such extremists was futile and immoral. The only acceptable response was to crush them.

This was essentially America’s response to terrorism for the next four decades as the frequency and ferocity of attacks rose. As terrible as Munich was, the response from President Richard M. Nixon did nothing to help the situation; rather it played into the hands of the most militant Palestinian factions, ensuring that the violence would continue.

Most scholars of the Palestine Liberation Organization now agree that attacks like the one in Munich were designed by Yasir Arafat’s rivals to shift power away from moderates and into the hands of more radical factions. The string of attacks attributed to the Palestinian Black September Organization between November 1971 and March 1973, of which Munich was the most dramatic, were actually an indication of the rifts within the P.L.O. While events like Munich seized headlines, a growing number of moderates within the P.L.O. — most notably Arafat — were putting out feelers about the prospect of a two-state solution in the Israeli-Palestinian dispute.

Although their rhetoric continued to call for Israel’s destruction, moderate leaders sent private signals indicating a willingness to compromise. “We need a change of tactics,” Arafat told Soviet officials in 1971. “We cannot affect the outcome of the political settlement unless we participate in it.” He then drew a map outlining a two-state solution for Israel and Palestine.

As State Department officials recognized in June 1972, the “young wolves” in the movement had forced Arafat to “back off” from serious peace overtures in order to remain in power.

Munich was also engineered to elicit violent reprisals from the Israeli government — which it did in the form of airstrikes against Palestinian refugee camps in Lebanon and Syria that killed hundreds, mostly civilians. Persuaded of the fundamental evil that Palestinian militants represented, American leaders remained steadfast in their refusal to condemn Israel for its attacks on Syria and Lebanon, choosing instead to cast America’s first lone veto of a Security Council Resolution on Sept. 10, 1972. The veto affirmed Washington’s position on the P.L.O.: no recognition, no negotiation and no legitimacy for terrorists.

In retrospect, it is hard to imagine how the Nixon administration could have reacted differently to the shock of the Munich murders. The spectacle of Jewish athletes being slaughtered in Munich, once the seat of Hitler’s ambitions, was perhaps too ghastly to allow for any alternative approaches.

It cannot be argued, however, that American leaders were unaware of the growing pragmatism within the P.L.O. Declassified White House papers show that, as early as 1970, State Department officials told Nixon that the Palestinians “cannot be ignored” and argued that they could become “constructive partners in a peace settlement.” American officials at the United Nations stressed that the Palestinians were “an essential element” and urged Washington to bring them into the peace process quickly.

Ultimately, the political need to stand up to “terrorism” made a more nuanced approach to Palestinian nationalism difficult. While Nixon might have negotiated with guerrillas — as he was in the process of doing with the National Liberation Front in South Vietnam in 1972 — to do so with “terrorists” seemed another matter altogether.

By failing to strengthen moderates within the P.L.O. and effectively locking the Palestinians out of the Arab-Israeli peace process, American officials sidelined potential peacemakers and pushed Palestinian national ambitions to the back burner. The decision to label all armed Palestinian groups “terrorists” postponed negotiations with the P.L.O. by 15 critical years, during which time the Lebanese civil war and the intifada helped spawn more militant groups like Hezbollah and Hamas. By the time relations were finally established in the late 1980s, Hamas’s star was already rising.

The lesson of America’s reaction to Munich is that the blanket charge of terrorism, coupled with absolute nonrecognition, is too unwieldy a tool for dealing with multiple complex political organizations. For violent groups like Al Qaeda and Islamic Jihad, which have unshakable commitments to destroying Israel or re-establishing the Islamic Caliphate, a forceful approach may be appropriate. But Washington shouldn’t rule out alternatives when dealing with groups that may have more limited long-term goals, like Hezbollah and Hamas.

As Nelson Mandela, Gerry Adams and Menachem Begin have shown, yesterday’s “terrorists” have a tendency to turn into tomorrow’s peacemakers. We should be careful not to let our fears of terrorists continue to blind us to opportunities when diplomatic openings present themselves. Ignoring chances for peace does nothing to honor the memories of those who died in September 1972.


Paul Thomas Chamberlin, an assistant professor of history at the University of Kentucky, is the author of “The Global Offensive: The United States, the Palestine Liberation Organization, and the Making of the Post-Cold War Order.”

    When It Pays to Talk to Terrorists, NYT, 3.9.2012,






In Latest Phase of Ground Zero Building Dispute,

a New Call for Oversight


June 8, 2012
The New York Times


The financial dispute that has hobbled construction of the museum at ground zero for eight months entered a new stage this week with a struggle over who will control the overall memorial and the eight-acre site. The Sept. 11 memorial foundation, which is led by Mayor Michael R. Bloomberg, has been responsible for the planning, development and programming of the memorial at the trade center site, as well as the visitor center and the National Sept. 11 Memorial and Museum, under a 2006 agreement.

The foundation, which has raised $430 million in private donations, has also controlled the site and overseen annual events commemorating the deaths of nearly 3,000 people in the terrorist attack.

But officials of the Port Authority of New York and New Jersey, which is jointly run by Gov. Andrew M. Cuomo of New York and Gov. Chris Christie of New Jersey, say they are concerned about the rising cost of building the museum and finding money for a $60 million annual budget once it opens.

They contend that there is a need for more oversight from a government agency, especially if the museum requires a continuing subsidy to cover its operating expenses.

“This is the site of a terrible national tragedy,” said Scott Rechler, vice chairman of the Port Authority, who was appointed by Governor Cuomo. “It needs to be protected for the public like other sacred sites, such as Gettysburg and Pearl Harbor. The victims of Sept. 11 deserve no less.”

Mr. Rechler added that day-to-day responsibility for operating the museum would remain in the hands of the foundation.

Mr. Rechler made his proposal at a meeting at the Port Authority’s headquarters with two deputy mayors, Howard Wolfson and Robert K. Steel, and Joseph C. Daniels, president of the foundation, on May 30.

The proposal got a chilly response from city officials and Mr. Daniels, who viewed it as an attempt to assert control, according to one person who attended the meeting.

“We feel pretty strongly that this is a private, nonprofit foundation with donors who created and paid for the museum,” said one city official, who would speak only on condition of anonymity. “It’s not really a prize for politicians to play around with.”

Most participants in the debate over the site are loath to publicly express disagreements for fear of igniting a battle that would hurt the museum and the memorial, which has attracted millions of visitors since it opened.

Julie Wood, a spokeswoman for the mayor, declined to comment on the meeting. She did say that the foundation was “created to ensure that the World Trade Center’s hallowed ground would remain so; that the memorial and the museum would be endowed with private funds; and that the site would remain free of political influence in perpetuity.”

Under an agreement signed in 2006 by the city, the state and the Port Authority, the foundation has responsibility for the museum and the memorial. The Port Authority was to lease or transfer the land to the foundation.

Mr. Bloomberg, who has indicated that he will not step down from the foundation when his term as mayor expires at the end of next year, has come to view the memorial and museum as key elements of his legacy.

State and Port Authority officials insist that they have no desire to run the museum or to diminish the contributions of the foundation. But they say they are seeking to resolve myriad financial issues.

In addition, they want to clarify the continuing role of the foundation, whose operating license for the museum and the memorial is due to expire on Sept. 10, 2013.

This week, Governor Cuomo told reporters that “a tremendous amount of money” had been wasted at the trade center site.

At the same time, The Daily News reported that the cost of the memorial and the museum had climbed to $1.3 billion.

The Port Authority largely stopped work on the museum last September, saying that the foundation owed it as much as $300 million.

The foundation countered that the Port Authority had failed to open the museum in 2009 as promised and, as a result, the foundation was the one that was owed money.

In recent months, the two sides seemed to reach a tentative agreement in which the foundation agreed to pay the Port Authority about $50 million over many years. The deal has not been completed. In addition to the $430 million in private contributions, the foundation has received about $250 million in federal funds and $80 million from the state for the memorial. It expects to pay a projected $60 million annual operating budget through a combination of museum entrance fees, private contributions and, possibly, $20 million a year from the federal government.

Mr. Bloomberg, who one board member said had personally contributed $15 million, took over as chairman of the foundation in October 2006.

Until then, the mayor had been one of the sharpest critics of the foundation’s anemic fund-raising and the cost of the museum and memorial.

    In Latest Phase of Ground Zero Building Dispute, a New Call for Oversight, NYT, 8.6.2012,






Sept. 11 Health Fund Given Clearance to Cover Cancer


June 8, 2012
The New York Times


A federal health official’s ruling has cleared the way for 50 different types of cancer to be added to the list of sicknesses covered by a $4.3 billion fund set up to compensate and treat people exposed to the toxic smoke, dust and fumes in the months after the Sept. 11, 2001, terrorist attacks.

The decision, released on Friday, came as a vindication for hundreds and perhaps thousands of people who have claimed — often in the face of resistance from public health officials — that their cancers were caused by their exposure to the dust cloud and debris thrown up by the attacks.

It will allow not only rescue workers but also volunteers, residents, schoolchildren and passers-by to apply for compensation and treatment for cancers developed in the aftermath of the attacks. The cancers will not be officially added to the list of covered illnesses until after a period of public comment and review that could last several months.

The decision, by Dr. John Howard, director of the National Institute for Occupational Safety and Health, comes despite a current absence of evidence linking the attack to cancer, causing some skepticism among epidemiologists. It also reduces the amount of money for people suffering from ailments more conclusively linked to the Sept. 11 attacks, namely lung and other respiratory sicknesses.

And it poses a number of logistical challenges, since it will be difficult if not impossible to separate people who developed cancer as a result of ground zero from those who would have gotten the disease anyway, and because many cancer diagnoses are likely to be made years after the deadline for applying for compensation passes in 2016.

Representative Carolyn B. Maloney, Democrat of New York and a primary sponsor of the 2010 law that set up the fund, said that she recognized those concerns but that the decision was the correct one. “I think it’s an important statement that the country’s going to take care of the workers and people who are there to save the lives of the people of the city,” she said.

One cancer patient who typifies the fraught nature of the decision, Ernest K. Matthews, 62, said he developed lung cancer in 2008 and had part of his right lung cut out. He was part of a crew that cleaned elevators for the Merrill Lynch building next to ground zero after the terrorist attack. He was also a smoker.

But he said he had been able to walk up six flights of stairs carrying a heavy tool bag without catching his breath before Sept. 11. He developed breathing problems soon after, he said.

“It’s a good day,” Mr. Matthews said Friday. “Look at all the people that suffered and lost their lives, sacrificing for the cleanup. It took so long for them to decide to help the people that were suffering.”

Dr. Howard’s decision represented an about-face from assurances by the federal government immediately after the terrorist attacks that there was nothing in the air to be worried about. In July 2011, Dr. Howard himself said there was not enough scientific or medical evidence to link cancer to Sept. 11.

But in a lengthy report explaining his decision, Dr. Howard said that a New York Fire Department study published last fall in the British medical journal The Lancet, which showed that firefighters exposed to ground zero toxic substances had about 20 percent higher rate of cancer than firefighters who were not exposed, had provided a strong foundation for a conclusion that some cancers had been caused by exposure to the World Trade Center debris.

Beyond the Lancet study, he said, he had relied on recommendations made in late March by a scientific and technical advisory committee consisting of experts from the fields of cancer, environmental medicine, toxicology and epidemiology as well as neighborhood activists and union officials. He fully adopted the committee’s recommendation that 14 broad categories of cancer, encompassing 50 specific types, should be deemed as related to the attacks.

Among the cancers Dr. Howard approved are some of the most common, including lung, breast, colon, trachea, esophageal, kidney, bladder, skin, thyroid, blood and ovarian cancers. Dr. Howard also approved childhood cancers, which are relatively rare, because children are more susceptible to toxic substances.

People with covered cancers who lived, worked or attended school in Lower Manhattan — generally the area below Canal Street — between Sept. 11, 2001, and May 30, 2002, would be able to apply for compensation for their economic losses, pain and suffering. Until the decision on Friday, the only ailments approved for compensation were mainly respiratory and digestive ones. Survivors of patients who have died, as well as people caught in the dust cloud downtown on the day of the attack, may also apply.

The amount of compensation will depend on the severity of the illness and duration of exposure, as proven by records like employment or housing documents, or city personnel records for fire, police and other public workers.

The new rules would apply to Pentagon and Shanksville, Pa., responders as well, and it allows those cancer patients to tap into a treatment fund to pay for medical costs not covered by insurance.

Mayor Michael R. Bloomberg, who has consistently deferred to scientific rulings on health hazards at ground zero, said that his administration had called for periodic reviews of the medical evidence on cancer, and that the decision was “an important step.”

The advisory committee had said that 70 known or potential carcinogens, including asbestos, arsenic and formaldehyde, had been found in the smoke, dust and fumes from the disaster, that 15 of those were known to cause cancer in humans, and that 37 were “reasonably anticipated” to cause cancer.

The advisory committee considered but rejected, by a 14-to-3 vote, the notion of adding all cancers to the list. It explicitly rejected pancreas, brain and prostate cancers, for various reasons. The committee could meet again to discuss other potential additions to the list.

The broad sweep of the committee’s recommendation raised some eyebrows among epidemiologists, several of whom have said that it appeared the committee was appealing to societal concerns that the cancer patients not be left out of the fund.

“Clearly this was a difficult decision, and primarily motivated by concern for a sympathetic population,” said Dr. Alfred I. Neugut, an oncologist and professor of epidemiology at the Mailman School of Public Health at Columbia. “The scientific evidence currently is certainly weak; whether future evidence bears out the wisdom of this decision will have to be seen.”

Dr. Howard made a nod toward a concern of some epidemiologists that because cancer was a common disease, it would be hard to distinguish who got cancer because of Sept. 11 from those who did not. He also said that hard scientific data conclusively linking Sept. 11 to cancer might take years to obtain.

“Requiring evidence of positive associations from studies of 9/11-exposed populations exclusively does not serve the best interests” of the patients, he wrote.


Susan C. Beachy contributed research.

    Sept. 11 Health Fund Given Clearance to Cover Cancer, NYT, 8.6.2012,






Long-Running Antiterrorism Work

With Saudis Led to Airline Plot’s Failure


May 9, 2012
The New York Times


WASHINGTON — In the video, Yemeni militants can be seen forcing their prisoner to his knees in the bright sunlight. The gunmen read out a death sentence declaring the man to be a Saudi spy who hoped to infiltrate Al Qaeda, and then, as the screen goes blank, a rifle shot rings out, followed by cries of “God is great!”

That gruesome clip was released by Al Qaeda’s Yemeni affiliate in March, two months before the revelation this week that American and Saudi intelligence agencies had infiltrated Al Qaeda in Yemen and foiled an effort to smuggle a bomb onto a United States-bound jetliner. But it offers a glimpse of the clandestine battle going on in the remote mountains and deserts of Yemen, where Saudi Arabia and the United States have worked closely together against a militant network that remains determined to strike American targets.

That collaboration appears to have intensified over the past two years, despite a long history of mistrust rooted in the role of Saudi hijackers in the attacks of Sept. 11, 2001. The relationship was tested again last year when Saudi leaders responded furiously to American endorsement of the revolt that ousted a Saudi ally, President Hosni Mubarak of Egypt. American diplomats were surprised and angered in turn soon afterward when Saudi Arabia sent troops to help put down unrest in neighboring Bahrain.

But when it comes to counterterrorism, the Saudis have been crucial partners, not only for the United States but also for an array of other Western powers. The crucial testing ground for that partnership is now Yemen, where the local affiliate of Al Qaeda continues to plan attacks against Western targets even after the killing of its chief ideologue, Anwar al-Awlaki, an American-born cleric, in a drone strike in the Yemeni desert last September.

“The Saudis have a special position in Yemen — they can do what the Americans cannot do,” said Mustafa Alani, a security analyst at the Gulf Research Center in Dubai, United Arab Emirates. “They understand the culture, and they provide the human intelligence, which is the crucial and dangerous part. The Americans provide the electronic surveillance.”

The Saudi authorities have said very little about the foiled plot, which was to involve a suicide bomber sewing an explosive into his underwear and detonating it in midair — much like the bombing attempt in late 2009 by a young Nigerian who was also recruited and trained in Yemen. The agent who foiled the plot — apparently by volunteering for the suicide mission himself — is now safely in Saudi Arabia, officials there say. But analysts have speculated that the disclosure may already have damaged Saudi Arabia’s carefully cultivated network of informants.

Saudi intelligence officials have been deploying agents in Yemen for years, analysts say, in what has become a game of mutual subversion. In 2009 a Saudi member of Al Qaeda’s Yemen-based affiliate suddenly returned home and surrendered to the authorities, delivering a blow to the militant network. A few months later, another militant — the brother of the man who American authorities believe designed the underwear device in the recently foiled plot — intended to do the same thing, but instead detonated a bomb concealed inside his body on his arrival. His target, the kingdom’s top counterterrorism official, Prince Mohammed bin Nayef, narrowly escaped death.

“Your success last time becomes your failure the next time,” said Gregory Johnsen, a Yemen scholar at Princeton University. “Both sides are constantly adapting and learning from each other.”

Most of this struggle takes place in the shadows, but occasional glimpses emerge in the frequent bulletins released by Al Qaeda’s Yemeni branch and its allied group, Ansar al-Shariah. The accused Saudi spy executed in March was one in a batch of three, and his execution video was accompanied by footage of all three men confessing to being paid by Yemeni or Saudi authorities. The confessions — which cannot be verified and could well have been produced under duress — include claims that the men provided information that helped American drones target and kill Yemeni militants. A number of similar videos were released last year.

The espionage has grown even more dangerous since last year, when political turmoil in the Yemeni capital of Sana allowed the militants to carve out a much broader swath of territory in south Yemen and even to build training camps, according to American officials. The American campaign of drone strikes has also stepped up, and on Sunday yielded a significant victory: the killing of Fahd al-Quso, a high-ranking member of Al Qaeda’s Yemeni branch who was wanted by the F.B.I. for his role in the 2000 bombing of the U.S.S. Cole.

That strike, which used information provided by the double agent who foiled the airliner plot, underscores how counterterrorism cooperation between the countries has intensified in the past eight months as analysts in both the United States and Saudi Arabia have monitored a growing number of informant tips and electronic intercepts indicating the Qaeda branch in Yemen was gearing up for another attack.

In October 2010, it was Prince bin Nayef who called John O. Brennan, President Obama’s top counterterrorism adviser, to warn that bombs packed inside computer printer cartridges were en route to Chicago from Yemen; the devices were removed from cargo planes in Dubai and the East Midlands Airport in Britain.

A former senior American intelligence official said on Wednesday that Prince bin Nayef oversaw the recent operation to use a Saudi informant to thwart the airliner plot.

“The threat from Yemen is in many ways the soft underbelly they need to protect, so it shouldn’t be surprising that they have intelligence and counterterrorism sources focused on this threat,” said Juan Zarate, a former top counterterrorism official under President George W. Bush who is now at the Center for Strategic and International Studies.

The counterterrorism cooperation has not been without bumps, officials from both countries acknowledge.

In 2007, the Federal Bureau of Investigation quietly sent a handful of agents to Saudi Arabia to work with officials there on a classified counterterrorism strategy, according to a senior American official who was briefed on the program. After several months, however, the two sides disagreed on a common strategy, and the F.B.I. agents went home.

Internal State Department cables obtained by WikiLeaks and made available to several news organizations revealed American frustration with Saudi Arabia in curtailing financial supporters of many extremist activities.

“It has been an ongoing challenge to persuade Saudi officials to treat terrorist financing emanating from Saudi Arabia as a strategic priority,” said a classified cable sent by Secretary of State Hillary Rodham Clinton in December 2009, concluding that “donors in Saudi Arabia constitute the most significant source of funding to Sunni terrorist groups worldwide.”

Under pressure from the United States, American officials now say, Saudi Arabia is taking the threat more seriously, holding financiers accountable through prosecutions and making terrorist financing a higher priority.

    Long-Running Antiterrorism Work With Saudis Led to Airline Plot’s Failure, NYT, 9.5.2012,






Bomber in Plot on U.S. Airliner Is Said to Be a Double Agent


May 8, 2012
The New York Times


WASHINGTON — The suicide bomber dispatched by the Yemen branch of Al Qaeda last month to blow up a United States-bound airliner was actually an intelligence agent for Saudi Arabia who infiltrated the terrorist group and volunteered for the mission, American and foreign officials said Tuesday.

In an extraordinary intelligence coup, the double agent left Yemen last month, traveling by way of the United Arab Emirates, and delivered both the innovative bomb designed for his aviation attack and inside information on the group’s leaders, locations, methods and plans to the Central Intelligence Agency, Saudi intelligence and allied foreign intelligence agencies.

Officials said the agent, whose identity they would not disclose, works for the Saudi intelligence service, which has cooperated closely with the C.I.A. for several years against the terrorist group in Yemen. He operated in Yemen with the full knowledge of the C.I.A. but not under its direct supervision, the officials said.

After spending weeks at the center of Al Qaeda’s most dangerous affiliate, the intelligence agent provided critical information that permitted the C.I.A. to direct the drone strike on Sunday that killed Fahd Mohammed Ahmed al-Quso, the group’s external operations director and a suspect in the bombing of the U.S.S. Cole, an American destroyer, in Yemen in 2000.

He also handed over the bomb, designed by the group’s top explosives expert to be undetectable at airport security checks, to the F.B.I., which is analyzing its properties at its laboratory at Quantico, Va. The agent is now safe in Saudi Arabia, officials said. The bombing plot was kept secret for weeks by the C.I.A. and other agencies because they feared retaliation against the agent and his family — not, as some commentators have suggested, because the Obama administration wanted to schedule an announcement of the foiled plot, American officials said.

Officials said Tuesday night that the risk to the agent and his relatives had now been “mitigated,” evidently by moving both him and his family to safe locations.

But American intelligence officials were angry about the disclosure of the Qaeda plot, first reported Monday by The Associated Press, which had held the story for several days at the request of the C.I.A. They feared the leak would discourage foreign intelligence services from cooperating with the United States on risky missions in the future, said Representative Peter T. King, a New York Republican and chairman of the House Homeland Security Committee.

“We are talking about compromising methods and sources and causing our partners to be leery about working with us,” said Mr. King, who spoke with reporters about the plot on Monday night and Tuesday after he was briefed by counterterrorism officials. Mr. King, who called the bomb plot “one of the most tightly held operations I’ve seen in my years in the House,” said he was told that government officials planned to investigate the source of the original leak. The C.I.A. declined to comment.

Intelligence officials believe that the explosive is the latest effort of the group’s skilled bomb maker, Ibrahim Hassan al-Asiri. Mr. Asiri is also believed to have designed the explosives used in the failed bombing attempt on an airliner over Detroit on Dec. 25, 2009, and packed into printer cartridges and placed on cargo planes in October 2010.

A senior American official said the new device was sewn into “custom-fit” underwear and would have been very hard to detect even in a careful pat-down. Unlike the device used in the unsuccessful 2009 attack, this bomb could be detonated in two ways, in case one failed, the official said.

The main charge was a high-grade military explosive that “undoubtedly would have brought down an aircraft,” the official said.

Forensic experts at the F.B.I.’s bomb laboratory are assessing whether the bomb could have evaded screening machines and security measures revamped after the failed 2009 plot. One American official said the bureau’s initial analysis indicated that if updated security protocols designed to detect a wider range of possible threats were properly conducted, the measures “most likely would have detected” the device.

On Tuesday, the Transportation Security Administration repeated a security message previously sent to airlines and foreign governments. The security guidance notes that Al Qaeda in the Arabian Peninsula still intends to attack the United States, probably using commercial aviation, and warns T.S.A. agents to look out for explosives in cargo, concealed in clothing or surgically implanted, officials said.

Over the past eight months, American counterterrorism officials have monitored with growing alarm a rising number of electronic intercepts and tips from informants suggesting that Al Qaeda’s branch in Yemen has been ramping up plots to attack the United States.

“There was increasing concern about the chatter, more and more intelligence” that Al Qaeda in the Arabian Peninsula “was moving with renewed energy to carry out some kind of attack against homeland, using airliners and concealed explosives,” said one senior administration official. Working with foreign allies, the Obama administration quietly tightened airport security.

The ominous signs followed months of political chaos in Yemen during which the Qaeda branch and its militant allies seized effective control over large areas of the country, giving the terrorist group a broader base from which to plot attacks against both the Yemeni government and the United States.

Senior American counterterrorism and military officials have expressed concern that Al Qaeda’s growing number of training camps, including small compounds, have churned out dozens of new fighters who, in turn, help expand the area under the insurgents’ control. Officials fear that the camps could also train Qaeda operatives for external operations against targets in Europe and the United States.

“Certainly when they hold terrain, it makes training more safe and secure than on disputed terrain; therefore, more and better training,” said one senior American military official.

The Yemeni government’s control over the hinterlands southeast of the capital, Sana, has always been tenuous, but over the past year it has receded almost entirely. With the authorities focused on political turmoil in the capital, many soldiers fled their posts, and jihadists began asserting control.

For more than a year the town of Jaar — along with several smaller settlements — has been controlled by militants who operate under the banner Ansar al-Sharia, which is variously described as a wing of Al Qaeda’s Yemeni branch or as an allied group.

One prominent tribal mediator from Shabwa Province, reached Tuesday by phone, said Ansar al-Sharia controlled all the checkpoints on Yemen’s southern coast between Aden and Balhaf, and as far north as Ataq. On Monday, militants attacked several army bases and outposts in the south, killing 20 soldiers and capturing 25, The Associated Press reported. Local tribal figures described the attacks as revenge for the killing of Mr. Quso on Sunday.

Control in the south often appears to be shared between militants, local tribes and members of the southern independence movement, which is largely secular. But Qaeda militants and their allies appear to operate freely even in areas they do not fully control, possibly including Aden, the south’s major city. Aden has become a bastion of open opposition to the government, with the flag of the independence movement — once rigidly banned — now flying from houses across the city.


Robert F. Worth and Michael S. Schmidt contributed reporting.

    Bomber in Plot on U.S. Airliner Is Said to Be a Double Agent, NYT, 8.5.2012,






At a Hearing, 9/11 Detainees Show Defiance


May 5, 2012
The New York Times


GUANTÁNAMO BAY, Cuba — Khalid Shaikh Mohammed fingered his long, henna-dyed beard and stared down in silence on Saturday, pointedly ignoring a military commissions judge asking in vain whether the self-described architect of the Sept. 11 attacks understood what was being said and whether he was willing to be represented by his defense lawyers.

Minutes later, Ramzi bin al Shibh, another of the five detainees arraigned on Saturday as accused conspirators in the attacks, stood, knelt and started praying. Later, he shouted at the judge that he should address their complaints about prison conditions because “maybe you are not going to see me again.”

“Maybe they are going to kill us and say that we have committed suicide,” he added.

One defendant, Walid bin Attash, was wheeled into the courtroom in a restraint chair for reasons that were not disclosed.

Amid disruptions both passive and aggressive, the government’s attempt to restart its efforts to prosecute the five defendants in the long-delayed Sept. 11 case got off to a slow and rocky start in a trial that could ultimately result in their execution.

After hours of jostling over procedural issues, all five defendants deferred entering a plea. The judge set a hearing date for motions in mid-June; the trial is not likely to start for at least a year.

The Bush administration had started to prosecute the men in the military commissions system in 2008.

The Obama administration tried to transfer the case to a federal court in Lower Manhattan, a short distance from the World Trade Center site, but the plan collapsed amid security fears and a backlash in Congress.

As defense lawyers repeatedly tried to change the subject to security restrictions that they say have hampered their ability to do their jobs, the judge, Army Col. James L. Pohl, struggled to stick to a military commissions script that had been rewritten the day before — and so was not yet translated into Arabic.

The judge, however, was determined to keep the case on track. When a lawyer for Mr. Mohammed, David Nevin, explained that his client had decided not to respond to the judge’s questions about his assigned defense lawyers in order to protest what he saw as an unfair process, Colonel Pohl replied that he would assume that he had no objections to being represented by them.

“He has that choice,” Colonel Pohl said of Mr. Mohammed’s silence. “But he does not have a choice that would frustrate this commission going forward.”

The arraignment was the first time since 2008 that the five high-profile Qaeda detainees had been seen in public. They wore loose, light-colored garb; their lawyers complained that they had brought other clothes to wear, but that prison officials refused to let them wear it.

Four walked into the courtroom without shackles but surrounded by three large guards who stood between them when the court was not in session. With Mr. bin Attash initially restrained, guards put glasses on his face and attached his prosthetic leg.

Colonel Pohl said he would have the restraints taken off if Mr. bin Attash would pledge not to disrupt the court, but Mr. bin Attash refused to answer him. Eventually, the restraints were removed after the judge accepted a promise relayed through Mr. bin Attash’s lawyer.

While passive when the judge tried to talk to them, the detainees occasionally whispered to one another. During brief recesses, they talked freely to their defense lawyers, and while guards came and stood between them, they craned their necks and talked to each other as well, appearing relaxed.

Each detainee also had a bin containing items liked legal papers, Korans, prayer rugs and other materials. Mr. Mohammed, wearing a black skullcap, took a white cloth from his bin and fashioned it into a sort of turban. One detainee, Ali Abd al Aziz Ali, had a copy of the Economist magazine, which he appeared to be reading and later handed to a detainee sitting behind him, Mustafa al Hawsawi, who leafed through it.

The detainees refused, however, to wear headphones so they could hear a simultaneous Arabic translation. To make sure they knew what was being asked, the judge directed translators to repeat in Arabic over a loudspeaker each phrase that was uttered in the courtroom, sometimes causing a confusing jumble and significantly slowing the process — especially after Mr. bin Attash insisted that prosecutors read the full charges, which consumed more than two hours.

The arraignment was the latest chapter for the detainees, who were captured and held for years in secret overseas prisons by the Central Intelligence Agency and subjected to harsh interrogation techniques. In 2008, they were charged before a tribunal and seen for the first time; Mr. Mohammed’s beard then was gray, and his behavior during pretrial motions was marked by frequent outbursts, not silence.

The high-security courtroom at this naval base was sealed; anything the detainees say is considered presumptively classified, and at one point censors cut off an audio feed when a defense lawyer said his client had been tortured, but later comments about torture were not. The sound also cut out at first when Mr. bin al Shibh began shouting — but was turned back on midway through.

Among the observers watching the proceeding behind soundproof glass were several family members of the nearly 3,000 people killed in the Sept. 11 attacks, separated from reporters and other observers by a blue curtain. (A closed-circuit feed was also broadcast to several locations around the United States.)

Several family members could be heard muttering when the lawyer for Mr. bin Attash, Cheryl Borman — who wore traditional black Muslim garb, covering everything but her face — asked women on the prosecution team to consider dressing more modestly so that the defendants would not have to avoid looking at them “for fear of committing a sin under their faith.” The women were wearing military or civilian jackets and skirts.

Ms. Borman later sought a court order preventing prison guards from forcibly extracting detainees from cells if they did not want to come to the next hearing, saying Mr. bin Attash had “scars on his arms”; as she spoke, he took off his shirts, but put them back on after the judge admonished him. Mr. Nevin also complained that Mr. Mohammed had been strip-searched that morning — which, along with not being allowed to wear the clothes their lawyers had brought for them, and not having a translation of the just-rewritten hearing script — had “inflamed the situation.”

Colonel Pohl said several such concerns were valid, but he would take them up at the next hearing.

Family members also whispered angrily about the disruptions. Against the backdrop of scrutiny over whether the military commissions system was a fair venue, Colonel Pohl appeared to be giving broader leeway to the defendants and the defense lawyers than many federal judges would tolerate.

Throughout the hearing, for example, lawyers for the detainees repeatedly raised complaints about restrictions on their ability to communicate, including problems with translators and a prison policy of looking through mail about the case. Colonel Pohl told them again and again not to raise an issue he had already said would be addressed later.

And when Mr. bin al Shibh stood and began praying, Colonel Pohl did not order guards to intervene. Later, when all five detainees returned from an hour break and then started praying in the courtroom, delaying the hearing by 20 minutes, he expressed only mild frustration.

“I fully respect the accused’s request for prayer,” he said. “It’s a right for them to have it. But a right can still be abused, if you understand me.”

Donald Guter, a retired rear admiral who was formerly the top judge advocate general in the Navy, attended the arraignment on behalf of Human Rights First. A critic of military commissions, he praised Colonel Pohl’s temperament — suggesting that the judge’s patience on procedural issues was probably aimed at “carrying over into a perception of fairness on the substantive issues.”

    At a Hearing, 9/11 Detainees Show Defiance, NYT, 5.5.2012,






Defendants in 9/11 Disrupt Hearing at Guantánamo


May 5, 2012
The New York Times


An arraignment for the self-described architect of the attacks on Sept. 11, 2001, and four other detainees descended quickly into a chaotic scene Saturday, as the defendants refused to answer — or even listen to — the judge’s questions, and their lawyers sought to cast doubt on whether a fair hearing was possible given their clients’ treatment at Guantánamo Bay.

The rocky beginning comes as the United States chases dual goals at the restart of the tribunal: to prosecute, and ultimately execute, the five detainees; and to demonstrate to the world that the tribunal system is legitimate.

According to news reports on Saturday, the lead defendant, Khalid Shaikh Mohammed , removed the headphones intended to provide Arabic-English translations of the judge’s questions. The other defendants did the same, forcing the judge, Army Col. James L. Pohl , to recess briefly. The hearing resumed after an interpreter began providing a translation that could be heard by the whole court.

But news reports depict a day filled with other interruptions. A co-defendant, Walid bin Attash , was strapped to a chair after refusing to come to court voluntarily. He was freed from the chair after pledging to behave inside the courtroom.

At one point, another detainee, Ramzi bin al-Shibh , rose suddenly, then knelt on the floor of the courtroom to pray. A team of guards in camouflage uniforms watched closely, but did not intervene.

As the case is restarted, Brig. Gen. Mark S. Martins, the chief prosecutor in the military commissions system, has sought to rebrand the system by highlighting changes that Congress made in 2009. These included a higher bar for “hearsay” evidence and a prohibition against using statements made during cruel or degrading treatment. Obama administration officials have cited these changes in arguing that the current tribunals are fair, unlike those in place during the Bush administration.

But lawyers for the defendants say that the improvements are exaggerated. During the hearing, Cheryl Bormann , a civilian lawyer for Mr. Attash, told the court that her client’s treatment at Guantánamo had impeded his ability to take part in the proceedings. “These men have been mistreated,” Ms. Bormann said, according to Reuters.

The judge said the defendants’ participation in the tribunal was not a matter of choice. As he questioned each defendant, he noted for the record, “The accused refuses to answer,” according to The Associated Press. He ruled that the defendants would be represented by the lawyers assigned to them.

Several family members of victims came to the naval base to watch the new arraignment. Others watched via satellite at military bases in the United States.

Mr. Mohammed wore a white turban. His flowing beard, which appeared to be graying in previous hearings, was tinged with red, according to news reports.

Tara Henwood-Butzbaugh of Manhattan, whose brother, John Henwood , died in the attacks, traveled to Guantánamo to watch.

“It’s been a long time coming,” she said before the hearing, “and I do think it’s in the right place because it was an act of war.”

In 2008, Mr. Mohammed was among the defendants who sent a note to a military judge at Guantánamo, asking to confess and to plead guilty. Almost a year later, Attorney General Eric H. Holder Jr. announced that the men would be tried in civilian court in Manhattan, rather than by a military tribunal. But faced with a political uproar, led by Republicans and some Democrats, the administration backpedaled, moving the trial out of New York. No other location was ever secured, and Mr. Holder announced last year that he had cleared military prosecutors at Guantánamo Bay to file war-crimes charges against the five detainees.

    Defendants in 9/11 Disrupt Hearing at Guantánamo, NYT, 5.5.2012,






‘Beyond Debate’


May 3, 2012
The New York Times


Jose Padilla, the American citizen detained as an enemy combatant after he was arrested by the Bush administration in May 2002, was denied contact with his lawyer, his family or anyone else outside the military brig for almost two years and kept in detention for almost four. His jailers made death threats, shackled him for hours, forced him into painful stress positions, subjected him to noxious fumes that hurt his eyes and nose and deafening noises at all hours, denied him care for serious illness and more.

This treatment was indisputably cruel, inhumane and shocking, in breach of the minimum standard required for anyone in American custody, especially a citizen. Some of it was torture, though Mr. Padilla should not have had to prove that to show his treatment was unconstitutional.

Seeking money damages of $1 — to make a point about accountability — Mr. Padilla sued John Yoo, the draftsman of legal policies for the Bush war on terrorism. Mr. Padilla said Mr. Yoo violated the Constitution by helping to shape policies that led to the unlawful detention and interrogation of Mr. Padilla and then writing legal papers to justify that approach.

In 2009, a Federal District Court in California ruled that Mr. Yoo was not immune from the lawsuit: the violations of rights Mr. Padilla alleged were “clearly established at the time of the conduct” and any “reasonable” federal official would have understood that.

But this week, in a misguided and dangerous ruling, a three-judge panel of the United States Court of Appeals for the Ninth Circuit decided that Mr. Padilla’s lawsuit cannot go forward because Mr. Yoo is immune. The unanimous opinion contends it was not “beyond debate” that Mr. Padilla, a citizen declared an enemy combatant, was entitled to the same protections as any accused criminal or convicted prisoner — or that his alleged treatment was clearly established to be torture in the years he endured it.

Until a year ago, the law gave officials so-called qualified immunity to shield them when they performed responsibly. In holding them accountable for exercising power irresponsibly, it required simply that a reasonable person would have known about the right he violated. Last May, however, the Supreme Court ruled that “existing precedent” must put any question about such a right “beyond debate.”

That is an unworkable standard and the Ninth Circuit decision shows why. The Bush administration manufactured both “debates” — about torture and enemy combatants. Any future government can rely on this precedent to pull the same stunt as cover for some other outrage.

By using the “enemy combatant” category, the Bush administration stirred debate that had not existed about whether rights of an American citizen in custody depend on how he is classified. By coming up with offensive rationalizations for torturing detainees, it dishonestly stirred debate about torture’s definition when what it engaged in plainly included torture.

The Ninth Circuit was wrong to swallow those deceits and to dwell on whether Mr. Padilla’s mistreatment was torture. Even if somehow it did not qualify, its cruel, inhumane and shocking nature badly violated his rights as a citizen — and international law on the treatment of detainees. Even at the time, the issue was beyond debate, and Mr. Yoo should have known that.

    ‘Beyond Debate’, 3.5.2012, http://www.nytimes.com/2012/05/04/opinion/beyond-debate.html






A Delicate New Balance on National Security


May 2, 2012
The New York Times


WASHINGTON — One moment he boasts about taking out America’s No. 1 enemy, and the next he vows to bring home troops from an unpopular war. For President Obama, the days leading up to his re-election kickoff have been spent straddling the precarious line between hawk and dove, and possibly redefining his party for years to come.

For four decades, Democrats have been confounded by a deeply ingrained soft-on-security image that has hurt them at the ballot box. But in a country now tired of war yet still seeking to project strength, Mr. Obama is trying to reposition his party on national security, much as Bill Clinton did on economic and domestic policy in the 1990s, triangulating between two poles.

The blend, captured by an unannounced trip to Afghanistan on Tuesday that ended in a nationally televised address, has frustrated critics on both left and right. Many in his party’s liberal base have grown disenchanted with Mr. Obama for tripling troop levels in Afghanistan, carrying over many of President George W. Bush’s counterterrorism policies and in some ways even expanding them. Many conservatives, on the other hand, argue that behind the raid that killed Osama bin Laden lies a fundamentally weak approach to rivals and rogue states like Iran, North Korea and Russia.

If it seems to some like the doctrine of having it both ways, it has scored well with a broad cross-section of the country, as measured by polls and focus groups. And Mr. Obama’s advisers have made clear in recent days that they believe he can play offense on national security as no other Democratic presidential candidate has since the Vietnam War.

“The post-9/11 paradigm that existed for several years, where you were either all in with the wars in Iraq and Afghanistan or you were not sufficiently hawkish, I think no longer applies,” said Benjamin Rhodes, a deputy national security adviser to the president. “He’s demonstrated that you can end those wars while actually more effectively targeting our enemy.”

Republicans see it as more calculation than conviction, more about winning an election than making America safe. “He’s in an odd position, sort of betwixt and between, and he can’t really figure out which way he wants to go,” said Senator John Cornyn of Texas, a Republican member of the Armed Services Committee and chairman of his party’s Senate campaign committee.

Of course, the innovations of drone warfare make it easier for a president to be tough at little cost to Americans, or to his political standing. Mr. Cornyn said that Mr. Obama denounced harsh interrogation techniques but evinced no hesitation about killing suspected terrorists — even an American citizen — from the skies. “It looks kind of superficial to me,” he said, “and looks expedient.”

Mr. Obama has long expressed a complicated view of national security that did not neatly fit into old boxes, but it was initially obscured by his strong opposition to the Iraq war. As a candidate in 2007 and 2008, he cited that stance as his central argument against his rival for the Democratic nomination, Hillary Rodham Clinton.

Less widely noticed was his attempt to balance that with vows to send more troops to Afghanistan and unilaterally strike inside Pakistan if necessary to capture or kill Bin Laden. At the time, many analysts thought those positions were more about avoiding the historical trap that past antiwar Democrats had fallen into. But four years later, Mr. Obama has presided over a national security policy that has married elements of both parties.

“What you’re seeing is carrying out a very well thought-out and very effective foreign policy — more than anything it’s pragmatic and practical,” said Representative Adam Smith of Washington, the top Democrat on the House Armed Services Committee. “He has done exactly what he said he was going to do.”

A New York Times/CBS News poll conducted last month showed that Mr. Obama had neutralized the traditional Republican advantage on national security. Fifty-nine percent expressed confidence in Mr. Obama’s ability to be an effective commander in chief, slightly more than the 56 percent who had confidence in that area in Mitt Romney, the putative Republican nominee.

“I think it has worked politically, but it is the type of thing that stops working the day after the election,” said Peter D. Feaver, a Duke University professor who worked on Mr. Bush’s national security staff. “If the policies are unwise, and I think they are at least fraught if not unwise, then those chickens come home to roost eventually.”

Politically, at least, Republicans in recent days struggled to come up with an effective counterpunch. They complained that Mr. Obama was politicizing national security when his campaign released a video last week hailing the Bin Laden raid. But if the video struck some as unseemly, including some in the White House who worried it was undignified, it kept the conversation focused for days on what the Obama team wanted to focus on.

As late as Tuesday night, former Defense Secretary Donald H. Rumsfeld told Fox News that Mr. Obama’s order launching the raid was not “a tough decision,” and that it “would just be dumbfounding” to decide otherwise. Democrats on Wednesday gleefully circulated a newspaper article reporting that Mr. Rumsfeld once pulled the plug on a raid to capture top Qaeda figures because it was too risky.

After initially saying that Mr. Obama was exploiting the raid, Mr. Romney and other Republicans pivoted by Wednesday to a more measured reaction to the president’s trip to Afghanistan. Senator Charles E. Grassley, Republican of Iowa, told a home-state radio station that “the only qualms I have about anything the president said is emphasizing to our enemies exactly what our next military move is, or the lack of a military move.” Mr. Obama, he said, is “misleading the American people” if he leaves the impression that the war on terrorism is over.

Mr. Obama, who campaigned on Sunday with Mr. Clinton, seems to be following his Democratic predecessor’s playbook. After a generation of Democrats alienating voters with liberal domestic positions, Mr. Clinton moved the party toward the center on issues like trade, welfare and deficit spending.

Recent focus groups conducted by Third Way, a Democratic-leaning group dedicated to that shift, found some success for Mr. Obama in doing the same for national security. “His brand on security has been very, very strong, and there’s no doubt that has been a radical shift in the way people think about Democratic presidents,” said Matt Bennett, the group’s senior vice president.

But it was limited to Mr. Obama. When it came to Democrats generally, Mr. Bennett said: “We heard the same thing we heard in ‘08: they’re weak, indecisive, afraid to use force. It just isn’t enough to completely change the brand. I think he’s done everything he can possibly do. It’s not his fault. It’s just it can’t be fixed in one term.”

    A Delicate New Balance on National Security, NYT, 2.5.2012,






Terrorist Plots, Hatched by the F.B.I.


April 28, 2012
The New York Times


THE United States has been narrowly saved from lethal terrorist plots in recent years — or so it has seemed. A would-be suicide bomber was intercepted on his way to the Capitol; a scheme to bomb synagogues and shoot Stinger missiles at military aircraft was developed by men in Newburgh, N.Y.; and a fanciful idea to fly explosive-laden model planes into the Pentagon and the Capitol was hatched in Massachusetts.

But dramas were facilitated by the F.B.I., whose undercover agents and informers posed as terrorists offering a dummy missile, fake C-4 explosives, a disarmed suicide vest and rudimentary training. Suspects naïvely played their parts until they were arrested.

When an Oregon college student, Mohamed Osman Mohamud, thought of using a car bomb to attack a festive Christmas-tree lighting ceremony in Portland, the F.B.I. provided a van loaded with six 55-gallon drums of “inert material,” harmless blasting caps, a detonator cord and a gallon of diesel fuel to make the van smell flammable. An undercover F.B.I. agent even did the driving, with Mr. Mohamud in the passenger seat. To trigger the bomb the student punched a number into a cellphone and got no boom, only a bust.

This is legal, but is it legitimate? Without the F.B.I., would the culprits commit violence on their own? Is cultivating potential terrorists the best use of the manpower designed to find the real ones? Judging by their official answers, the F.B.I. and the Justice Department are sure of themselves — too sure, perhaps.

Carefully orchestrated sting operations usually hold up in court. Defendants invariably claim entrapment and almost always lose, because the law requires that they show no predisposition to commit the crime, even when induced by government agents. To underscore their predisposition, many suspects are “warned about the seriousness of their plots and given opportunities to back out,” said Dean Boyd, a Justice Department spokesman. But not always, recorded conversations show. Sometimes they are coaxed to continue.

Undercover operations, long practiced by the F.B.I., have become a mainstay of counterterrorism, and they have changed in response to the post-9/11 focus on prevention. “Prior to 9/11 it would be very unusual for the F.B.I. to present a crime opportunity that wasn’t in the scope of the activities that a person was already involved in,” said Mike German of the American Civil Liberties Union, a lawyer and former F.B.I. agent who infiltrated white supremacist groups. An alleged drug dealer would be set up to sell drugs to an undercover agent, an arms trafficker to sell weapons. That still happens routinely, but less so in counterterrorism, and for good reason.

“There isn’t a business of terrorism in the United States, thank God,” a former federal prosecutor, David Raskin, explained.

“You’re not going to be able to go to a street corner and find somebody who’s already blown something up,” he said. Therefore, the usual goal is not “to find somebody who’s already engaged in terrorism but find somebody who would jump at the opportunity if a real terrorist showed up in town.”

And that’s the gray area. Who is susceptible? Anyone who plays along with the agents, apparently. Once the snare is set, law enforcement sees no choice. “Ignoring such threats is not an option,” Mr. Boyd argued, “given the possibility that the suspect could act alone at any time or find someone else willing to help him.”

Typically, the stings initially target suspects for pure speech — comments to an informer outside a mosque, angry postings on Web sites, e-mails with radicals overseas — then woo them into relationships with informers, who are often convicted felons working in exchange for leniency, or with F.B.I. agents posing as members of Al Qaeda or other groups.

Some targets have previous involvement in more than idle talk: for example, Waad Ramadan Alwan, an Iraqi in Kentucky, whose fingerprints were found on an unexploded roadside bomb near Bayji, Iraq, and Raja Khan of Chicago, who had sent funds to an Al Qaeda leader in Pakistan.

But others seem ambivalent, incompetent and adrift, like hapless wannabes looking for a cause that the informer or undercover agent skillfully helps them find. Take the Stinger missile defendant James Cromitie, a low-level drug dealer with a criminal record that included no violence or hate crime, despite his rants against Jews. “He was searching for answers within his Islamic faith,” said his lawyer, Clinton W. Calhoun III, who has appealed his conviction. “And this informant, I think, twisted that search in a really pretty awful way, sort of misdirected Cromitie in his search and turned him towards violence.”

THE informer, Shahed Hussain, had been charged with fraud, but avoided prison and deportation by working undercover in another investigation. He was being paid by the F.B.I. to pose as a wealthy Pakistani with ties to Jaish-e-Mohammed, a terrorist group that Mr. Cromitie apparently had never heard of before they met by chance in the parking lot of a mosque.

“Brother, did you ever try to do anything for the cause of Islam?” Mr. Hussain asked at one point.

“O.K., brother,” Mr. Cromitie replied warily, “where you going with this, brother?”

Two days later, the informer told him, “Allah has more work for you to do,” and added, “Revelation is going to come in your dreams that you have to do this thing, O.K.?” About 15 minutes later, Mr. Hussain proposed the idea of using missiles, saying he could get them in a container from China. Mr. Cromitie laughed.

Reading hundreds of pages of transcripts of the recorded conversations is like looking at the inkblots of a Rorschach test. Patterns of willingness and hesitation overlap and merge. “I don’t want anyone to get hurt,” Mr. Cromitie said, and then explained that he meant women and children. “I don’t care if it’s a whole synagogue of men.” It took 11 months of meandering discussion and a promise of $250,000 to lead him, with three co-conspirators he recruited, to plant fake bombs at two Riverdale synagogues.

“Only the government could have made a ‘terrorist’ out of Mr. Cromitie, whose buffoonery is positively Shakespearean in its scope,” said Judge Colleen McMahon, sentencing him to 25 years. She branded it a “fantasy terror operation” but called his attempt “beyond despicable” and rejected his claim of entrapment.

The judge’s statement was unusual, but Mr. Cromitie’s characteristics were not. His incompetence and ambivalence could be found among other aspiring terrorists whose grandiose plans were nurtured by law enforcement. They included men who wanted to attack fuel lines at Kennedy International Airport; destroy the Sears Tower (now Willis Tower) in Chicago; carry out a suicide bombing near Tampa Bay, Fla., and bomb subways in New York and Washington. Of the 22 most frightening plans for attacks since 9/11 on American soil, 14 were developed in sting operations.

Another New York City subway plot, which recently went to trial, needed no help from government. Nor did a bombing attempt in Times Square, the abortive underwear bombing in a jetliner over Detroit, a planned attack on Fort Dix, N.J., and several smaller efforts. Some threats are real, others less so. In terrorism, it’s not easy to tell the difference.


David K. Shipler is the author of

“Rights at Risk: The Limits of Liberty in Modern America.”

    Terrorist Plots, Hatched by the F.B.I., NYT, 28.4.2012,






Guantánamo Trials Should Be Open


April 18, 2012
The New York Times


LAST week I stood before a military judge at Guantánamo Bay to argue that the press and public had a constitutional right to observe the proceedings of military commissions. It is an argument I’ve made scores of times on behalf of news organizations objecting to closed proceedings in criminal and civil trials, but this was the first time that a military commission — part of a system of tribunals created in 2006 to try terrorism suspects — agreed to hear such arguments from the press.

Whether this marks a new openness, or is another in a long line of false starts, remains to be seen. But the government has a real opportunity to show its commitment to the rule of law by acknowledging that the public’s First Amendment rights apply at Guantánamo. The values served by open criminal proceedings — public acceptance of the verdict, accountability for lawyers and judges, and democratic oversight of our government institutions — apply there with particular urgency.

The controversy over public access to the Guantánamo trials has come to a head in the prosecution of Abd al-Rahim al-Nashiri, accused of masterminding the 2000 attack on the Navy destroyer Cole. Mr. Nashiri’s lawyers want to meet with him unshackled, asserting that shackling brings back memories of torture and interferes with his ability to assist in preparing his defense. They proposed to call both Mr. Nashiri and a psychologist to testify in support of their request.

The government still considers its interrogation techniques “classified information.” Under this logic, Mr. Nashiri’s own testimony about his own treatment must be kept secret.

But so much is already known about Mr. Nashiri’s interrogation that a secret proceeding on its psychological impact is unwarranted. A report, prepared in 2004 by the inspector general for the Central Intelligence Agency and partly released in 2009, disclosed that Mr. Nashiri had been waterboarded twice, threatened with use of a handgun and a power drill, and held in stress positions that could have dislocated his arms from his shoulders. What real threat would justify preventing the public from hearing his first-person account of this interrogation?

In May 2010, four journalists were expelled from Guantánamo for reporting the name of the chief interrogator of a terrorism suspect, Omar Khadr — even though the interrogator had sought out the press years earlier to tell his story. After an uproar, the Pentagon’s top lawyer, Jeh C. Johnson, facilitated the reinstatement of the reporters on their promise that they would abide by rules governing the commissions, and then set out to revise the rules. Under new rules announced in September, reporters may now make their objections to secrecy to the presiding judge in writing. The decision to hear my argument in person by the top judge in the Nashiri case, Col. James L. Pohl, was an important step forward.

The motion for access, which was filed by 10 news organizations (including The New York Times, a client of mine), argues that the First Amendment obliges that Mr. Nashiri’s testimony be taken in an open courtroom. Under the Constitution, the fact that a specific piece of information might technically be “classified” should not be sufficient to close a hearing if the information is already known to the public (and easily found on the Internet).

On April 11, Colonel Pohl granted Mr. Nashiri’s motion for unshackled visits without taking testimony, so he sidestepped, for now, a decision on the standard that will govern requests to close proceedings at the Guantánamo trials. But the issue will undoubtedly return, and the military’s commitment to openness will again be tested.

In recent weeks the lead prosecutor for the military commissions, Brig. Gen. Mark S. Martins, has made the case that military tribunals are uniquely suited for the prosecution of a narrow class of terrorism suspects and that the use of these tribunals should be recognized as consistent with commitment to the rule of law. But the world will never accept the Guantánamo verdicts if significant testimony is closed for fear of embarrassment over detainee mistreatment.

The thought of a Guantánamo defendant taking the stand to testify about his treatment, in his own words, may not be appealing for many reasons. But we must be prepared to lay out all the facts, wherever they lead, if we are to demonstrate to the world that the verdicts ultimately rendered at Guantánamo are justifiable, however they turn out.

As Chief Justice Warren E. Burger observed in 1980, on the importance of the Constitution’s protection of public access to the courts: “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”


David A. Schulz is a First Amendment lawyer and a lecturer at Yale Law School.

    Guantánamo Trials Should Be Open, NYT, 18.4.2012,






European Court Says

Britain May Send Terror Suspects to U.S.


April 10, 2012
The New York Times


LONDON — The European Court of Human Rights ruled on Tuesday that Britain could legally extradite five suspects wanted in the United States on terrorism charges, including Abu Hamza al-Masri, an inflammatory former mosque cleric accused in a range of unprosecuted anti-American plots that date back 14 years.

In a precedent that eases extradition of terrorism suspects — an issue that has surfaced repeatedly since Britain relaxed procedures after the Sept. 11, 2001 attacks in New York and Washington — the court ruled that the human rights of the defendants would not be violated by their incarceration in a maximum security American prison.

Although the court said the defendants could not be extradited before further legal procedures were completed, including further objections by rights activists, which could possibly delay their transfer to America for months, the ruling was nonetheless viewed as one of the most important court decisions on the prosecution of terrorism suspects since the Sept. 11 attacks.

“Detention conditions and length of sentences of five alleged terrorists would not amount to ill-treatment if they were extradited to the U.S.A.,” the judges said.

Much attention in the case centered on Mr. Hamza, a one-time preacher at the Finsbury mosque in London at a time when it was regarded by the British security services as a hotbed of radicalism. Before the Sept. 11 attacks, the preacher described himself as Al Qaeda’s chief representative in Britain. Abu Hamza al-Masri is the pseudonym by which Mostafa Kamel Mostafa is most widely known.

Before Tuesday’s ruling, lawyers acting for him said they would argue at the European court, which is based in Strasbourg, France, that the prospect of an American prison term of 50 years or more for their client would be a breach of his human rights.

Based on charges filed in the United States, The Associated Press reported, Mr. Hamza and four other suspects could get lifelong jail terms in America without parole in maximum-security conditions, including concrete furniture, timed showers, tiny cell windows and no outside communications.

The court, however, ruled that it would be legal for Britain to extradite all five of them. It postponed a ruling in a sixth case while awaiting further detail about the suspect’s psychological condition.

The ruling also said the five men whose extradition would be regarded as lawful “should not be extradited” until after procedures, including a possible appeal by their lawyers, and other processes to make the judgment final. Those moves could take months.

The six suspects had been indicted in the United States between 1999 and 2006 on charges relating variously to hostage-taking in Yemen and attacks on American embassies in East Africa. Mr. Masri faces 11 counts relating to hostage-taking in 1998, calling for holy war in Afghanistan in 2001 and participation in an attempt to establish a militant training camp at Bly, Ore., between June 2000 and December 2001.

In the hostage-taking episode, American prosecutors say, the 16 victims, all tourists, included two Americans. Four hostages — three Britons and one Australian — were killed and several others were wounded when the Yemeni Army tried to rescue them.

Britain considers Mr. Masri to be an Egyptian citizen, but he maintains that he has lost his status as an Egyptian national. He is currently serving a seven-year sentence in Britain for inciting racial hatred and urging followers to commit murder.

Mr. Masri is a distinctive figure, with one eye and a steel hook in place of his right hand, as a result of injuries to his arms and face sustained in what he has described as land-mine explosions while fighting the Soviet occupation of Afghanistan. The European court said on Tuesday that American authorities would consider Mr. Masri’s detention in the supermax prison “impossible because of his disabilities,” notably the “amputation of his forearms.”

The mosque at which he preached was seen by European antiterrorism investigators as a focus of jihadism. Both Richard Reid, the so-called shoe-bomber, and Zacarias Moussaoui, accused of being the 20th hijacker in the Sept. 11 attacks, are reported to have attended that mosque before their arrests.

Another of the defendants, Babar Ahmad, 37, a computer expert accused of being a fund-raiser for terrorist causes, has been held in prison in Britain without a trial for almost eight years.

In an unusual interview last week with the BBC, conducted in a special detention unit for terrorism-related extradition cases, Mr. Ahmad declared: “I have been in prison now for nearly eight years without trial. I am facing extradition to the U.S. to spend the rest of my life in solitary confinement. I have never been questioned about the allegations against me. I have never been shown the evidence against me.”

“I do not hold the Americans responsible for anything that has happened to me,” he said, “but I think it is fair to say that I am fighting for my life — and I am running out of time.

“Eight years without trial is like living on death row. It’s like you are living every day for a tomorrow that might or might not come. And it has been very, very difficult. It’s just not knowing: There are prisoners all around me who have release dates. Even if it is 10 years ahead of them, they have a date. Detention without trial is the most unimaginable type of psychological torture.”

The European judges also ruled that three others — Seyla Talha Ahsan, Adel Abdul Bary and Khaled Al-Fawwaz — could be extradited once legal processes were completed. The sixth suspect, whose case was postponed, was identified as Haroon Rashid Aswat, accused of being Mr. Masri’s co-conspirator.

Mr. Bary and Mr. Al-Fawwaz were charged with multiple murders in the 1998 bombings of the American embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya, which killed more than 200 people. Mr. Ahsan, like Mr. Ahmad, is charged with providing support to terrorists and conspiracy-related offenses.

Prime Minister David Cameron welcomed the ruling. “It is quite right that we have proper legal processes, although sometimes one can get frustrated with how long they take,” The Press Association news agency quoted him as saying.

The outcome announced on Tuesday contrasted sharply with a ruling by the same European court in January that Abu Qatada, a radical Islamic preacher regarded as one of Al Qaeda’s main inspirational leaders in Europe, could not be sent from Britain to his native Jordan because his trial there would be tainted by evidence obtained by torture.

The preacher, whose real name is Omar Mahmoud Mohammed Othman, was subsequently released on strict bail terms in February.

The ruling on Tuesday also played into a tangled debate in Britain over its extradition treaty with the United States, which is widely perceived and depicted here as giving American prosecutors unwarranted powers to demand the extradition of British suspects whose crimes were not committed on American soil.

Two particular cases relate to Britons accused of infringing on American laws from their computers at home. One of them is that of Gary McKinnon, who was accused of hacking into American military computers, and the other is that of Richard O’Dwyer, accused of offenses under American copyright laws.

The latest ruling “still leaves open the case of whether the U.S. is the right place to try all of these suspects,” said Sarah Ludford, a spokeswoman for the Liberal Democrat junior coalition partner, arguing that those “whose alleged crimes were perpetrated from their computers at home in Britain should face home-grown justice.”

    European Court Says Britain May Send Terror Suspects to U.S., NYT, 10.4.2012,






The Road We Need Not Have Traveled


April 7, 2012
The New York Times


The Pentagon’s prosecutors formally charged Khalid Shaikh Mohammed and four other men last week with war crimes for planning and carrying out the murder of 2,976 people on Sept. 11, 2001, and referred their case to a constitutionally flawed military tribunal that will be convened at the Guantánamo Bay detention camp, a global symbol of human rights abuses.

The conspirators have been held for more than nine years. As Brig. Gen. Mark Martins, the chief military prosecutor, said in a speech at Harvard on Tuesday, the use of military commissions “has become a matter of the rule of law and of recognizing that at some point justice delayed really is justice denied.” But it is worth remembering how we got to this system and this place — the worst way to administer justice to the 9/11 terrorists.

Let’s start with the delay. All of the men could have been brought to trial years ago, but President Bush decided he could ignore the Constitution. He ordered them to be held in secret C.I.A. prisons and subjected to brutal and illegal interrogations. Mr. Mohammed was waterboarded 183 times in one month alone. That torture produced no useful intelligence, according to virtually all accounts, except those offered by people like former Vice President Dick Cheney, who was the key architect of the Bush administration’s lawless detention and interrogation policies.

When Mr. Mohammed was moved to Guantánamo Bay, finally, with the four others, there were immediate questions about whether they could ever be tried legitimately, given how tainted the evidence was. Mr. Bush did nothing, content with arguing that Congress’s decision to declare a perpetual state of war with Al Qaeda gave him the right to hold prisoners indefinitely without any trial.

President Obama came into office pledging to close Guantánamo Bay and restore the rule of law to the treatment of terrorism suspects. He has largely failed.

Attorney General Eric Holder Jr. announced that the Justice Department had reviewed the cases against these five prisoners and concluded they should be tried in federal court in Manhattan. He was absolutely right, but he failed to prepare local politicians, who claimed the trial would pose a security threat — a problem, if it ever existed, that could have been dealt with. The posturing on Capitol Hill was worse, with Republicans howling that a civil trial would not guarantee a guilty verdict, the law be damned.

The White House put the trial on hold, and Congress meanwhile passed a law prohibiting the use of federal money to try any Guantánamo prisoner in federal court. The Justice Department then “reviewed” the cases again and announced that what it really meant was these were prisoners who were best handled by a military tribunal. And so there will be a trial — in a tribunal system improved from the kangaroo courts that Mr. Bush created, but still profoundly flawed.

At Harvard, General Martins spoke eloquently about the need for real justice. “If we treat the law as a luxury, we sacrifice legitimacy,” he said. Those are powerful words, but can he keep that promise?

Jameel Jaffer, deputy legal director of the American Civil Liberties Union, notes that after years of being subjected to treatment designed to destroy prisoners physically and psychologically, “if someone emerges from this kind of system and then supplies a confession or a guilty plea, how confident can we be that the statement is untainted by torture? Imagine that another country — Iran, say, or North Korea — proposed as much. Would we buy it?”

We hope General Martins’s commitment to justice will persuade a highly skeptical world to accept the legitimacy of these trials; convicting and executing the prisoners after a tainted trial would be a disaster. But after all that has happened, even the best-managed trial will not be able to change the fact that this country has in the last decade accepted too many damaging and unnecessary changes to its fundamental principles of justice and human rights.

    The Road We Need Not Have Traveled, NYT, 7.4.2012,






Bin Laden Plot Against Obama Outlined in Documents


March 16, 2012
The New York Times


WASHINGTON — A terrorist whom Osama bin Laden wanted to assassinate President Obama was himself killed in a drone strike last year, shortly after evidence of the plot showed up in documents seized by the SEAL team that killed Bin Laden in Pakistan.

The documents include one in which Bin Laden asked his top lieutenant, Atiyah Abd al-Rahman, to find out from a Pakistani terrorist named Ilyas Kashmiri “the steps he has taken” toward assassinating Mr. Obama and the top American general in the region. Mr. Kashmiri had long been one of the chief targets of American counterintelligence forces.

That account emerged in a column by David Ignaitius that was published Friday morning on the Web site of The Washington Post. Mr. Ignatius said he had been granted access to translations of the documents from the raid last year that have been declassified and will be made public soon.

It has been known since a few days after the Bin Laden raid in Abbottabad, Pakistan, last year that the documents carted off by the Americans included evidence of the Qaeda leader’s desire to assassinate Mr. Obama, who in the end struck first.

But the documents, as quoted by Mr. Ignatius, could provide new insights into Bin Laden’s thinking as his influence and capacity for action were hamstrung by the pressure of the American campaign to find him. In the documents, his wording can be bureaucratic, theological, convoluted, acerbic or quirky. Some directives run for dozens of pages.

Mr. Ignatius quoted documents in which Bin Laden wanted to organize cells in Afghanistan to attack aircraft carrying Mr. Obama and Gen. David H. Petraeus, who was then the top regional military commander and is now director of the Central Intelligence Agency.

Bin Laden said one result of the death of the president, whom he called “the head of infidelity,” would be to elevate Vice President Joseph R. Biden Jr., causing a crisis because he is “totally unprepared,” according to the documents. General Petraeus was “the man of the hour,” Bin Laden said, and his death “would alter the war’s path.”

Evidently, Bin Laden was worried that the deaths of so many innocent Muslims at Al Qaeda’s hands had damaged its reputation. And he mused that the Americans were shying away from the phrase “global war on terror” because it might ring badly in the ears of Muslims. He suggested that to broaden its own appeal to Muslims, Al Qaeda might want to change its name, which means “the Base,” to something like the “Monotheism and Jihad Group.”

    Bin Laden Plot Against Obama Outlined in Documents, NYT, 16.3.2012,






The Power to Kill


March 10, 2012
The New York Times


President Obama, who came to office promising transparency and adherence to the rule of law, has become the first president to claim the legal authority to order an American citizen killed without judicial involvement, real oversight or public accountability.

That, regrettably, was the most lasting impression from a major address on national security delivered last week by Attorney General Eric Holder Jr.

There were parts of the speech worth celebrating — starting with Mr. Holder’s powerful discussion of why trying most terrorists in civilian courts is best for punishing them and safeguarding America. But we are deeply concerned about his rejection of oversight and accountability when it comes to killing American citizens who are suspected of plotting terrorist acts.

A president has the right to order lethal force against conventional enemies during conventional war, or against unconventional enemies in unconventional wars. But when it comes to American citizens, there must be compelling evidence that the threat the citizen poses is imminent and that capturing the citizen is not a realistic option.

The case that has brought the issue to international attention is the Sept. 30, 2011, drone strike in Yemen that killed Anwar al-Awlaki, an American citizen, who United States officials say was part of Al Qaeda’s command structure. Another American was killed in the strike, and Mr. Awlaki’s 16-year-old son, also an American citizen, was killed in an attack two weeks later.

The killings touched off a storm of criticism. Mr. Awlaki’s father tried to sue the government, which used the “national secrets” defense to have the case tossed out. But the administration has refused to acknowledge that the killing took place or that there is in fact a policy about “targeted killings” of Americans.

It has even refused to acknowledge the existence of a Justice Department memo providing legal justification for killing American citizens, even though that memo has been reported by The Times and others. It is beyond credibility that Mr. Obama ordered the Awlaki killing without getting an opinion from the department’s Office of Legal Counsel. Even President George W. Bush took the trouble to have lawyers in that office cook up a memo justifying torture.

The administration intended Mr. Holder’s speech to address the criticism and provide a legal argument for the policy, but it was deeply inadequate in important ways.

Mr. Holder agreed that killing an American citizen requires that he “poses an imminent threat of violent attack against the United States,” that capture “is not feasible,” that the target has military value, that other people are not targeted intentionally, that the potential “collateral damage” not be excessive and that the weapons used “will not inflict unnecessary suffering.”

But he gave no inkling what the evidence was in the Awlaki case, and the administration did not provide a way in which anyone other than the people who gave the order could review whether the standards were met. Mr. Awlaki made tapes for Islamist Web sites that justified armed attacks on the United States by Muslims. But was he just spouting off, or actively plotting or supporting attacks?

All Mr. Holder did say was that the president could order such a killing without any judicial review and that any such operation would have “robust” Congressional oversight because the administration would brief Congressional leaders. He also said the administration provided Congress with the legal underpinnings for such killings.

In the Awlaki case, we do not know whether that notification was done in advance or after the fact, if it was done at all. We do know the administration has not given Congress the legal memo with the underlying justification for killing American citizens, because Senator Patrick Leahy, chairman of the Judiciary Committee, was asking Mr. Holder for it just the other day.

Perhaps most disturbing, Mr. Holder utterly rejected any judicial supervision of a targeted killing.

We have said that a decision to kill an American citizen should have judicial review, perhaps by a special court like the Foreign Intelligence Surveillance Court, which authorizes eavesdropping on Americans’ communications.

Mr. Holder said that could slow a strike on a terrorist. But the FISA court works with great speed and rarely rejects a warrant request, partly because the executive branch knows the rules and does not present frivolous or badly argued cases. In Mr. Awlaki’s case, the administration had long been complaining about him and tracking him. It made an earlier attempt to kill him.

Mr. Holder said such operations require high levels of secrecy. That is obvious, but the FISA court operates in secret, and at least Americans are assured that some legal authority not beholden to a particular president or political party is reviewing such operations.

Mr. Holder argued in his speech that judicial process and due process guaranteed by the Constitution “are not one and the same.” This is a straw man. The judiciary has the power to say what the Constitution means and make sure the elected branches apply it properly. The executive acting in secret as the police, prosecutor, jury, judge and executioner is the antithesis of due process.

The administration should seek a court’s approval before killing an American citizen, except in the sort of “hot pursuit” that justifies the police shooting of an ordinary suspect. There should be consequences in the event of errors — which are, tragically, made, and are the great risk. And the administration should publish the Office of Legal Counsel memo. We cannot image why Mr. Obama would want to follow the horrible example set by Mr. Bush in withholding such vital information from the public.

    The Power to Kill, NYT, 10.3.2012,






Surveillance, Security and Civil Liberties


March 3, 2012
The New York Times


Taking office not long after the Sept. 11, 2001, attacks, Mayor Michael Bloomberg and Police Commissioner Raymond Kelly wisely decided to beef up the Police Department’s counterterrorism program significantly, to help federal law enforcement agencies avert another disaster.

Unfortunately, they did not provide for sufficiently strong supervision of this formidable and far-flung intelligence operation — to check the well-known tendency of all such agencies, operating in secrecy and under murky rules, to abuse their powers. It appears that many thousands of law-abiding Muslim-Americans have paid a real price for that omission. A series of articles by The Associated Press has exposed constitutionally suspect surveillance of Muslims in New York, New Jersey, Long Island and beyond. Unearthed police records noticeably lack any apparent link to suspected criminal activity, or any obvious payoff for public safety.

In particular, the A.P. reports revealed widespread police spying and the creation of police records containing information on Muslim people, mosques and campus groups, as well as luncheonettes, dollar stores and other legitimate businesses owned and frequented by Muslims, with no apparent reason to think anything wrong was going on.

In mid-February, The A.P. disclosed that police officers systematically monitored the Web sites and blogs of Muslim student groups at N.Y.U., Columbia, Yale, Rutgers and a dozen other colleges. Documents show that an undercover agent accompanied 18 Muslim students from City College on a whitewater rafting trip in 2008. Dossier entries noted vital national security information — like the number of times they prayed.

Last week, The A.P. reported that plainclothes officers from the department’s euphemistically named Demographic Unit fanned out across Newark in 2007, snapping pictures of mosques and Muslim-owned businesses, listening to conversations, and gathering information about the makeup of mosque worshipers for an eerie 60-page internal police report stamped “NYPD Secret.” Similar reports were prepared on other Muslim neighborhoods.

Newark’s mayor, Cory Booker, and the president of Rutgers University, Richard McCormick, have spoken out movingly about the wounds inflicted by these activities. Muslims in Newark and at Rutgers, they said, have become reluctant to pray openly at mosques, join in faith-based groups, or frequent Muslim hangouts for fear of being watched and possibly tarred by “guilt by association.”

It is a distressing fact of life that mistreatment of Muslims does not draw nearly the protest that it should. But not just Muslims are threatened by this seemingly excessive warrantless surveillance and record-keeping. Today Muslims are the target. In the past it was protesters against the Vietnam War, civil rights activists, socialists. Tomorrow it will be another vulnerable group whose lawful behavior is blended into criminal activity.

Mr. Bloomberg has reacted in the worst possible way — with disdain — to those raising legitimate questions about the surveillance program. Asking about its legality, and about whether alienating innocent Muslims is a smart or decent strategy, does not translate into being soft on terrorism, or failing to appreciate that it is a dangerous world.

The mayor insists that the actions reported by The A.P. were “legal,” “appropriate” and “constitutional.” He also says the police were only “following leads.” But he has yet to explain what sort of leads, why they justify police surveillance of so many Muslims, or whether the type of surveillance depicted in the news reports continues. Under a federal court decree, it is permissible to collect information from public sources. But going to public places apparently selected on the basis of religion and recording information having nothing to do with terrorism — including religious and political views expressed in mosques and campus gatherings — is another matter.

Officials like Gov. Andrew Cuomo, Senator Charles Schumer and the City Council speaker, Christine Quinn, should be urging the Police Department to be less grudging about supplying information that would aid public understanding, instead of racing to give the police a pass.

We welcome last week’s statement by Attorney General Eric Holder that the Justice Department is beginning to review complaints about the N.Y.P.D.’s surveillance of Muslim and Arab communities to determine whether a full civil rights investigation is warranted. The review’s prompt completion should be a priority.

Meantime, we are wondering what happened to the Michael Bloomberg who stood up for fairness and religious freedom by backing a proposed Muslim community center near ground zero. We hope that mayor re-emerges soon to restore trust.

    Surveillance, Security and Civil Liberties, NYT, 3.3.2012,






9/11 Victims’ Remains Disposed of in Landfill,

Mortuary Report Finds


February 28, 2012
The New York Times


WASHINGTON—The mortuary at Dover Air Force Base in Delaware disposed of some body parts of the victims of the Sept. 11, 2001, attacks by burning them and dumping the ashes in a landfill, an independent panel said in a report released on Tuesday.

The method of disposal of the Sept. 11 remains, which has not been previously disclosed, was limited to what the report said were “several portions of remains” that could not be identified from the Pentagon attack and the crash site in Shanksville, Pa. The report said the remains were cremated and placed in containers provided to a biomedical waste disposal contractor, who then incinerated them and put them in the landfill.

“We don’t think it should have happened,” John Abizaid, the retired general who led the panel, told reporters as he discussed the findings at the Pentagon.

The practice was also used for some unidentified remains of the nation’s war dead, a fact first disclosed late last year. The practice has since been stopped and the ashes are now put in urns and buried at sea.

The disclosure about the Sept. 11 victims came as the independent panel concluded that the mortuary, the entry point for the nation’s war dead, should have more oversight, training of employees and inspections. “These problems need to be corrected right away,” General Abizaid said.

The panel did not address a central issue in the scandal at the mortuary: whether the Air Force should have further disciplined three mortuary officials who had displayed what the Air Force termed “gross mismanagement” for losing body parts of two service members and then doing nothing to correct sloppy practices. The decision about what to do about the officials has been left to Michael Donley, the secretary of the Air Force, who has a news conference scheduled for later Tuesday.

The disclosure about the Sept. 11 victims’ remains came about only in passing, in a brief mention on Page 6 of the report and in a further brief mention in the report’s appendix. General Abizaid, who said his task had been to make recommendations and not investigate past practices, offered no detail about the disposal of the Sept. 11 victims’ remains beyond the sparse mentions in the report.

The panel, which was only asked to look into practices at the mortuary, found what it called a “lack of clear command authority and supervision, lack of command and technical oversight, unclear relationships among coordinating organizations” and other bureaucratic problems. Among other recommendations, it said that embalmers should have the most up-to-date training and suggested there be more of them.

In November, Defense Secretary Leon E. Panetta asked the panel to review practices at the mortuary after the Air Force made a public assessment of “gross mismanagement” at the mortuary and disclosed that the mortuary had lost body parts.

At that time the Air Force disciplined but did not fire three senior mortuary officials. Col. Robert H. Edmondson, the former commander of the Air Force Mortuary Affairs Operations Center, who left his position as part of a regular rotation last year, received a letter of reprimand, effectively ending any further promotions. Trevor Dean, Colonel Edmondson’s former deputy, and Quinton R. Keel, the former mortuary director, both civilians, were demoted and moved to lesser jobs at Dover, although not in the mortuary.

At the same time, a watchdog agency, the Office of Special Counsel, released a scathing report on the mortuary and said the three should have been fired. In a letter to the White House in November, Carolyn N. Lerner, the head of the office, said that Mr. Keel and Mr. Dean had exhibited a pattern of “negligence, misconduct and dishonesty” and that there had been a “failure of leadership” by Colonel Edmondson.

Last month, the Office of Special Counsel released another report saying that officials at the mortuary — it did not name them — had retaliated against four employees after the employees raised concerns about the mishandling of service members’ remains. In a 39-page report, the agency detailed what it called reprisals against the four employees over a 17-month period in 2009 and 2010.

    9/11 Victims’ Remains Disposed of in Landfill, Mortuary Report Finds, NYT, 28.2.2012,






Kelly Defends Surveillance of Muslims


February 27, 2012
The New York Times


Police Commissioner Raymond W. Kelly defended the New York Police Department’s counterterrorism program on Monday, saying “people have short memories as to what happened here in 2001.”

Mr. Kelly’s remarks, made during an appearance on WOR-AM (710), were in response to growing criticism of the department’s surveillance methods, including monitoring of Muslim communities in New York City and beyond, and its reliance on stop-and-frisk interactions as a crime-fighting tool.

He defended the surveillance conducted by the Police Department, saying, “It would be folly for us to focus only on the five boroughs of New York City, and we have to use all of our resources to protect everyone.”

Mr. Kelly suggested that criticism from political candidates amounted to “pandering” that ignored the department’s core mission. “What we’re trying to do is save lives, and the tactics and strategies that we’ve used on the streets of this city have indeed saved lives,” he said.

Mr. Kelly’s remarks on Monday were the latest in which he has mounted a strong defense of the Police Department, which has been criticized in the last several months over its handling of the Occupy Wall Street protests last year and the rising numbers of street stops in high-crime areas.

More recently, the latest in a series of articles by The Associated Press on the department’s surveillance of Muslims examined how the police had mapped out Muslim neighborhoods in Newark, focusing on businesses and mosques, and how police reports had been based on information gleaned by monitoring Web sites of Muslim student organizations at universities across the Northeast. After the articles were published, a number of universities issued statements expressing concern over the Police Department’s scrutiny of their student organizations, and some New Jersey officials expressed alarm at the Police Department’s operations in their state.

Last week, in an article under Mr. Kelly’s name in The Daily News, he described the Police Department’s strategy for combating gun violence. Then on Monday, he was the subject of a front-page column in The Daily News by Mike Lupica, in which Mr. Kelly said he was not going to backtrack.

“So apologize for doing what I’m paid to do, for being realistic about the way we protect this city, and what we know about the way radical Islam works?” Mr. Kelly said in the column. “Not happening.”

Speaking on WOR, during a segment hosted by Representative Peter T. King, Republican of Long Island, Mr. Kelly continued his defiant tone, saying that regardless of criticism, the Police Department was going to do “what we believe has to be done to protect our city.” He criticized the news media as being shortsighted, saying that “they forget” that New York City has been the target of numerous terrorist plots — Mr. Kelly put the number at 14 — since the Sept. 11, 2001, attack.

Mr. King referred to an elected official who said that people in his district were more frightened by the Police Department than they were of drug dealers. “I find those remarks absolutely disgraceful,” Mr. King said.

“Absolutely,” Mr. Kelly replied. “Well, you know, pandering is going on, that’s the season that we’re entering now.”

    Kelly Defends Surveillance of Muslims, NYT, 27.2.2012,






At 9/11 Memorial, Police Raise Fears of Suicide


February 15, 2012
The New York Times


Amid the serenity and solemnity of the National September 11 Memorial, the two sunken granite pools that designate the footprints of the absent World Trade Center towers have become a natural focal point, drawing visitors with artificial waterfalls that extend three stories down.

But for the New York Police Department, the pools also represent a focal point for an entirely different reason: the fear that people overwhelmed by grief may try to commit suicide there.

Police officials and grief experts share concerns that the memorial poses a unique risk because of its layout and its powerful relationship to the terrorist act of Sept. 11, 2001, and because those who lost loved ones that day may still have unresolved issues of loss.

The concern is as yet unrealized; there have been a million or so visitors to the memorial since it opened last September, and there have been no suicide attempts. Nonetheless, the police said a plan had been put in place.

“We have to think of these possibilities,” Police Commissioner Raymond W. Kelly said in an interview with Esquire magazine. “People might commit suicide. We’re concerned about the possibility of somebody jumping in.”

Grief experts say memorials can set off negative psychological reactions, especially for those who have a direct connection to the event being memorialized. That effect could be magnified at the Sept. 11 memorial, where the memory of what happened there may still be fresh.

Dr. Dana M. Alonzo, associate professor of social work at the Columbia University School of Social Work, said there had been instances of people having new episodes of post-traumatic stress disorder; after visiting the Vietnam Veterans Memorial in Washington, people have reported worsened symptoms.

“If they have not completed the mourning process, or the mourning process is complicated, which is what generally happens when someone’s loved one dies in a violent type of death,” Dr. Alonzo said, “then the grieving process can take on the form of complicated grief.”

“The memorial, rather than serving as a source of comfort, can heighten feelings of either ‘This is unjust’ or desires for revenge of some sort,” she added. “They can feed into those negative feelings that the person is stuck in.”

Officials at the Oklahoma City National Memorial and Museum said they were aware of the power of a physical landmark to unearth strong emotions in people, whether or not they had a connection to that place.

“Of course it is a trigger for grief; people died here,” Kari F. Watkins, the executive director, said. “But when people experience this site, they see the hope that comes out of the horror and the good that overcame evil.

“People come to these places and begin to understand the meaning of them. We’re teaching lessons of remembrance and resilience, and no matter what people are going through in their personal lives, they can relate to some story that is told here.”

Since the Oklahoma City landmark opened in April 2000, on the fifth anniversary of the bombing of the Alfred P. Murrah Federal Building, no one has made a suicide attempt there, Ms. Watkins said.

But in New York, as the Sept. 11 memorial began to take shape in 2006, the concern about possible suicide attempts was expressed by James K. Kallstrom, a former adviser on counterterrorism. At the time, the greater concern was that someone would throw a satchel laden with explosives or release an airborne contaminant around the memorial’s twin, one-acre watery voids.

“Our big worry several years ago, in the original design, was terrorism, and now we add suicide to the equation,” said Glenn P. Corbett, an associate professor of fire science at John Jay College, who is advising the Skyscraper Safety Campaign in its criticism of the memorial as inadequately safe and secure. “I think it’s going to happen — a suicide. I think it is an unbelievably emotional site.”

Sally Regenhard, whose son Christian, a firefighter, was killed in the terrorist attack at the World Trade Center, acknowledged that the thought of suicides at the memorial pools had “passed my mind — that people might think of really jumping in, in grief.”

“When people see water, this is such a grief-stricken area that it is certainly within the realm of possibility,” Ms. Regenhard added. “It’s something that should be thought about.”

Commissioner Kelly did not go into detail about the police strategy to prevent suicides there, saying only, “We actually have a plan for when that happens.”

As a practical matter, anyone trying to take his or her life in the waterfalls would have to scuttle over a bronze parapet inscribed with the names of those who died in the terrorist attacks in New York, Northern Virginia and Pennsylvania, as well as those who died in the trade center attack in 1993. Once the parapet is cleared, eight feet of water-covered marble must be navigated.

Michael Frazier, a spokesman for the National September 11 Memorial and Museum, said the site was patrolled by officers from the police forces of New York City and the Port Authority of New York and New Jersey. He added that there had been “no incidents in the pools, whatsoever.”

Mr. Frazier acknowledged that there was a rule banning off-duty or retired officers from carrying weapons at the memorial site, but said it had nothing to do with concerns about suicide attempts.

Nonetheless, Dr. Gail M. Saltz, a psychoanalyst in New York with the American Psychoanalytic Association, said those who visited memorials to monumental loss might bring with them “their own individual association to loss” that could stir thoughts of suicide.

“Are we talking about people who lost someone on 9/11 and are having complicated grief and therefore are exceedingly depressed and at risk for suicide?” Dr. Saltz said. “Are we talking about someone who has a history of terrible loss that could be standing at a place of loss that might stir those feelings?”

“We can’t always predict,” she said, adding that she was unaware of any suicides at a memorial site.

Still, Dr. Saltz said: “Someone could plan to go there, or someone could be visiting the memorial and be overwhelmed by the thought of suicide. An impulsive act of jumping in may, to that person, be a way of joining their loved one.”

    At 9/11 Memorial, Police Raise Fears of Suicide, NYT, 15.2.2011,






Intelligence Chief Sees Al Qaeda

Likely to Continue Fragmenting


January 31, 2012
The New York Times


WASHINGTON — The nation’s top intelligence official said on Tuesday that continued pressure from the United States and its allies will likely reduce Al Qaeda’s core leadership in Pakistan to “largely symbolic importance” over the next two to three years as the terrorist organization fragments into more regionally focused groups and homegrown extremists.

The assessment by the official, James R. Clapper, the director of national intelligence, added new detail to similar analyses by American counterterrorism officials in recent months. They were contained in prepared remarks to the Senate Intelligence Committee at the panel’s annual hearing to review global threats to the United States.

Mr. Clapper also addressed possible threats from Iran as tensions with that country over its nuclear program escalate. He said that the alleged Iranian plot last year to assassinate the Saudi ambassador to the United States “shows that some Iranian officials — probably including Supreme Leader Ali Khamenei — have changed their calculus and are now more willing to conduct an attack in the United States in response to real or perceived US actions that threaten the regime.”

The statement did not provide any details on what types of attacks he thought were possible.

He also said the United States is concerned about Iranian plotting against American or allied interests overseas, adding that “Iran’s willingness to sponsor future attacks in the United States or against our interests abroad probably will be shaped by Tehran’s evaluation of the costs it bears for the plot against the Ambassador as well as Iranian leaders’ perceptions of US threats against the regime.”

Mr. Clapper also noted the rising volatility in the Middle East and North Africa following the popular uprisings of the Arab Spring; increasing threats of cyber attacks against government and private business computer systems; continued tensions with North Korea over its nuclear program; and rising drug-fueled violence in Mexico and Central America that threatens to spill over America’s borders.

The death of Osama bin Laden last May has severely weakened an Al Qaeda leadership that was already reeling from the death or capture of several other top leaders and losses have forced the terrorist organization to rely more heavily on affiliates in such places as North Africa, Iraq and Yemen.

Mr. Clapper said the global threat from Al Qaeda will undergo an important transition over the next two to three years to more regional actors assuming greater prominence. He also said there will be competing voices for the organization’s leadership arguing over whether to focus on local targets or the global mission to attack the West, and particularly the United States, an approach that bin Laden championed.

But intelligence officials say that continued pressure by the United States and its allies — including drone strikes, efforts to dry up terrorists’ financing and campaigns to counter extremist recruiting propaganda — will fragment this already decentralized movement.

“With fragmentation, core Al Qaeda will likely be of largely symbolic importance to the movement,” Mr. Clapper said. “Regional groups, and to a lesser extent small cells and individuals, will drive the global jihad agenda both within the United States and abroad.”

The counterterrorism strategies and tactics the West uses to fight terrorist groups will be critical to ensure long-term success, he said. “A key challenge for the West during this transition will be conducting aggressive CT operations while not exacerbating anti-Western global agendas and galvanizing new fronts in the movement,” he said.

Mr. Obama addressed this concern directly on Monday when he acknowledged publicly for the first time that the United States has carried out drone strikes against Qaeda leaders and other militants in Pakistan’s tribal areas. But he disputed reports that the strikes have caused large numbers of civilian casualties.

“Drones have not caused a huge number of civilian casualties,” Mr. Obama said Monday in response to questions posed by people during a live Web interview sponsored by Google Plus, the social media site of Google. “This is a targeted, focused effort at people who are on a list of active terrorists who are trying to go in and harm Americans, hit American facilities, American bases, and so on.”

Of all the affiliates that have sprouted up over the past decade, the Qaeda arm in Yemen poses the greatest immediate threat to the United States, Mr. Clapper said. The group, Al Qaeda in the Arabian Peninsula or AQAP, was behind the plot for a young Nigerian man to blow himself up on commercial jetliner over Detroit on Dec. 25, 2009. The group has also sought to acquire castor beans, from which ricin, a deadly toxin, is produced.

Mr. Clapper said that the death last September of Anwar al-Awlaki, an American-born cleric who was a top propagandist and operational planner for the Yemen affiliate, “probably reduces, at least temporarily, AQAP’s ability to plan transnational attacks.”

But the group remains very dangerous, he said, particularly since political instability has allowed the Qaeda branch in Yemen to seize large areas of southern Yemen, giving fighters there “greater freedom to plan and conduct operations.”

Overall, Al Qaeda has struggled to keep pace with events unfolding as result of the Arab Spring, Mr. Clapper said, warning, however, that “prolonged instability or unmet promises of reform would give Al Qaeda, its affiliates, and its allies more time to establish networks, gain support, and potentially engage in operations, probably with less scrutiny from local security services.”

Homegrown violent extremists here in the United States that are inspired by, but not necessarily under the direction of Al Qaeda, are more difficult for law enforcement officials to detect, and “are capable of conducting at least limited attacks in the next year,” he said.

Hopscotching around the world in his remarks, Mr. Clapper singled out Iran for special attention.

He reiterated the American intelligence assessment that “Iran is keeping open the option to develop nuclear weapons, in part by developing various nuclear capabilities that better position it to produce such weapons, should it choose to do so.”

He added: “We do not know, however, if Iran will eventually decide to build nuclear weapons,” noting that Iran’s decision-making is guided by “a cost-benefit approach,” which allows the international community to influence the government in Tehran.

The United States also faces new and evolving cyber threats from nations such as Russia and China, as well as non-state entities. Mr. Clapper said the most menacing foreign intelligence threats against the country in the next two to three years will involve foreign spy services using cyber attacks to target “U.S. government agencies, businesses, and universities. We assess that many intrusions into US networks are not being detected.”

As American diplomats step up their efforts to broker a peace deal with the Taliban and other militants to end the war in Afghanistan, Mr. Clapper sounded a cautiously optimistic note.

“The Afghan Government will continue to make incremental, fragile progress in governance, security, and development in 2012,” he said, noting that progress hinges in large part on international support to help fight the Taliban.

And while NATO troops have weakened the Taliban’s influence in its core Pashtun areas of support in southern Afghanistan, Mr. Clapper said the Taliban “remains resilient and capable of challenging U.S. international goals.”

He added: “Taliban senior leaders continue to enjoy safe haven in Pakistan, which enables them to provide strategic direction to the insurgency and not fear for their safety.”

    Intelligence Chief Sees Al Qaeda Likely to Continue Fragmenting, NYT, 31.1.2012,




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