ProPublica: National Security

After Acquittal, U.S. Resident Now Faces Deportation

2008-08-27T12:07:00-05:00

by Eric Umansky

Remember the alleged plot two summers ago to blow up the Sears Tower? Seven men from an obscure religious sect in Miami, the Seas of David, were indicted. Attorney General Alberto Gonzales trumpeted the charges at a press conference, saying, "Individuals here in America made plans to hurt Americans."

But the evidence turned out to be less than overwhelming. The men had no connections to terrorist groups and what little plotting there was had been urged on by an FBI informant.

The case has so far ended in two mistrials, and one of the defendants, Lyglenson Lemorin, was acquitted in December 2007. (Lemorin had left the sect months before the arrests and moved to Atlanta with his family after expressing qualms about the group.)

But Lemorin wasn't freed. Instead, Lemorin was transferred to detention and told he was going to be deported to Haiti, where he last lived as a child. Born in Haiti, the 33-year-old Lemorin has been in the U.S. legally for the past 20 years. The deportation orders were based on essentially the same charges Lemorin was acquitted of: supporting terrorism. (Because immigration issues such as deportations are a civil matter, double jeopardy isn't an issue.)

After eight months in detention, Lemorin's deportation trial began this week. As the Miami Herald notes, the burden of proof at such immigration hearings is lower than at criminal trials ("Clear and convincing evidence" rather than "beyond a reasonable doubt").

So far, there's been no ruling. The government's lawyers pointed out that Lemorin took part in an "oath" of allegiance to al-Qaida. Lemorin's lawyers have countered that the oath was conceived of and administered by an FBI informant and that more importantly, Lemorin objected and fled the group shortly after. "As soon as it became clear what was going on, he bolted," Lemorin's lawyer told the Herald.

The circumstances of the case appear to be unprecedented. "If he's deported," writes the Herald, "Lemorin could be the only legal resident acquitted of terrorism charges and with no prior record to be booted out of the country."

The judge has set aside two weeks for the trial.

Meanwhile, the criminal case against the other six defendants goes on, after two trials ended in hung juries. A third trial is scheduled for January.

Afghan Officials Holding Terror Suspect’s Son, a U.S. Citizen

2008-08-26T17:50:00-05:00

by Eric Umansky

The strange case of Aafia Siddiqui continues. As we wrote last week, there are lingering questions about where Siddiqui was in the five years before the suspected al-Qaida sympathizer was apparently arrested last month in Afghanistan. Siddiqui disappeared along with her three children in March 2003. The U.S., who has charged Siddiqui with trying to kill a GI during an escape attempt after her arrest this July, says the American-trained neuroscientist spent those years as a fugitive. Meanwhile, human rights activists wonder whether Siddiqui was detained in a secret prison.

Now there’s a new wrinkle in the case. It's one that's nearly as odd as Siddiqui's lost time, except this time everybody seems to agree on the facts: Afghan security forces are holding Siddiqui's son, an 11 year-old U.S. citizen. The Washington Post reports:

In a letter to [Siddiqui's family]..., federal prosecutors said photos and DNA tests strongly suggest that the youngster in Afghan custody is Siddiqui's son, Ahmed. The boy was detained July 18 when Afghan police arrested Siddiqui in what they described as a shootout near a government compound in Ghazni.

The Post called officials in Afghanistan who confirmed that they're holding the boy. "We kept the boy for 24 hours because we do not have a right to hold him longer than that," an Interior Ministry official told the paper. "We sent him to the National Security Directorate, and I don't know what happened to the boy after that."

According to the Post, "U.S. agents" also spoke with Siddiqui's son, who "initially told them he was an orphan."

The Post doesn't quote any U.S. officials on their reaction to Afghan forces holding an 11-year-old American citizen. We're going to make some calls.

Meanwhile, the CIA again denied that they knew anything about where Siddiqui was in the years before her capture. "Had we known where Ms. Siddiqui was prior to her capture, we would have shared that information with our partners in this country and overseas," a CIA spokesman told the Post. "She was a fugitive from American justice."

Terror Watch List Technologically Troubled

2008-08-22T11:32:00-05:00

by Eric Umansky

The U.S.'s terror watch list has long been criticized for being too broad. (List luminaries have included Sen. Ted Kennedy and a presumably precocious third-grader. Asked whether he was a terrorist, the child responded, "I don't know.") But it turns out, the list isn't only too wide. According to congressional investigators, it's also technologically hobbled.

According to the Wall Street Journal, which details the investigators' findings ($), the current watch list database was built in a rush after 9/11 and uses seriously limited software. For instance, the list can't be searched for keywords. Investigators also concluded that the database doesn't include "potentially vital" messages from the Central Intelligence Agency.

The government is building a new database. But apparently it's not shaping up to be a crackerjack system either. According to the Journal:

When tested, the new system failed to find matches for terrorist-suspect names that were spelled slightly different from the name entered into the system, a common challenge when translating names from Arabic to English. It also could not perform basic searches of multiple words connected with terms such as "and" and "or."

The new database, called "Railhead," was supposed to be completed by the end of the year, but it's hitting delays. Citing a "congressional aide," the Journal says the "government has fired most of the 862 private contractors from dozens of companies working on the Railhead project, and only a skeleton crew remains."

If you’re interested in poking around more on the project, the Journal has helpfully posted congressional investigators' findings (PDF), as well as technical documents by Railhead's contractors. (The first (PDF) of those documents outlines problems with the current database. The second (PDF) details specifications for the new database.)

The Journal said it contacted Railhead's two contractors, Boeing and SRI International, but didn't hear back by press time.

We're curious how large the budget is for the troubled Railhead program. We'll update the post as soon as we get the numbers.

Gov. Discloses Border Crossing Database

2008-08-20T11:51:00-05:00

by Paul Kiel

Last month the Department of Homeland Security disclosed a new database, called the Border Crossing Information (BCI) system, on page 43,457 of the 2008 Federal Register. Today, the Washington Post gives it Page One treatment.

The data will be basic personal information: The Post reports that Customs and Border Protection agents began to log the arrivals of all U.S. citizens across land borders earlier this year, adding that by next June, "all travelers crossing land borders will need to present a machine-readable document, such as a passport or a driver's license with a radio frequency identification chip." The U.S. already maintains a database for airline travel, which will be fed into BCI.

The primary purpose of the database, according to DHS, is to prevent terrorists and terrorists' weapons from entering the country. But the data could also be released outside of DHS for other purposes. That, and the fact that records will be retained for 15 years, is ample cause for concern from privacy advocates, who question whether the database is even legal. The Post continues:

The government states in its notice that the system was authorized by post-Sept. 11 laws...

[Greg Nojeim, senior counsel at the Center for Democracy & Technology] said that though the statutes authorize the government to issue travel documents and check immigration status, he does not believe they explicitly authorize creation of the database.

"This database is, in a sense, worse than a watch list," he said. "At least in the watch-list scenario, there's some reason why the name got on the list. Here, the only thing a person does to come to the attention of DHS is to lawfully cross the border. The theory of this data collection is: Track everyone -- just in case."

The Federal Register notice lists a number of "routine uses" (PDF) for the records. They could be released to federal, state, local, foreign governments or government contractors for various reasons, ranging from criminal investigations to feeding new data crunching systems designed to "enhance border security or identify other violations of law."

And they could be released to a judge as part of a civil suit or to the news media and public "when there exists a legitimate public interest in the disclosure of the information."

But DHS says that the data will be exempt from certain provisions of the Privacy Act, including the right of a citizen to know whether a law enforcement or intelligence agency has requested his or her records.

DHS also has requested that the states all contribute to a national database of licensed drivers. But some states have opted out (it's unclear how many), the Post reports, deciding instead to provide the information only when prompted by a query:

Because of privacy concerns, Washington state earlier this year opted for the queries-only approach. The Canadian government made the same decision. "There was absolutely no way they should have the entire database," said Ann Cavoukian, Ontario's privacy commissioner, who learned about the Canadian government's decision in April.

"Once you have data in a database you don't need, it lends itself to unauthorized use," she said. "You have no idea of the data creep."

DHS will accept public comments through next Monday, when the new database will go into effect.

Coming This Week: International Edition!

2008-08-18T15:12:00-05:00

by Sharona Coutts

Congress is in summer recess and everyone else in the U.S. seems to be at the beach, their ranch or preparing for the conventions.

So in lieu of our normal roundup, we're giving you a taste of some of the (very few!) events we found afar.

Monday, Aug. 18

Zimbabwean opposition leader Morgan Tsvangirai is on a 10-day tour of southern Africa, meeting with leaders across the continent as part of his effort to break the deadlock in talks with President Robert Mugabe.

Tsangirai, who won a thumping victory in March's elections, has been in negotiations with Mugabe for a month. It's the first time the two men have spent long periods of time together, and while there have been several occasions where a resolution seemed near, no agreement has yet been reached.

Also today, America's second-in-command in Iraq, Lt. Gen. Lloyd Austin III, will brief reporters on ongoing security operations over there. Earlier this summer, Austin warned that sectarian violence would increase in the lead-up to Iraqi elections, scheduled in October.

Tuesday, Aug. 19

There are two meetings on the Russian invasion of Georgia. First, NATO foreign ministers will be meeting to talk about the crisis.

It will be interesting to watch NATO's response, given that one of Russia's main complaints about Georgia is its attempt to join the regional defense organization, which Russia considers a threat.

The second event is a meeting between the president of the International Committee of the Red Cross president, Jakob Kellenberger, and senior Russian officials. The ICRC reported today that they are still unable to access many parts of Georgia, and Human Rights Watch says that Russia may have violated humanitarian law during the attacks.

Also, the trial of former Liberian President, Charles Taylor, resumes at the Special Court of Sierra Leone. Taylor is charged with 17 counts of crimes against humanity and other serious violations of international law, including alleged use of child soldiers in the conflict with Sierra Leone.

His other alleged crimes include "murdering and mutilating civilians, including cutting off their limbs, using women and girls as sex slaves, abducting adults and children, and forcing them to perform forced labor or become fighters during Sierra Leone's conflict."

Human Rights Watch has good background on Taylor and the conflict in Sierra Leone, and you can find lots more information about the trial here.

$100 Billion to Contractors in Iraq

2008-08-12T12:06:00-05:00

by Paul Kiel

Sometimes a number best tells the story. Especially if the story is simply that the U.S. has dropped a ton of money on contractors in Iraq.

By the end of this year, the U.S. will have spent $100 billion on contractors, says the Congressional Budget Office in a report just released this morning (PDF).

Contractor spending accounted for about 20 percent of the war costs through 2007. According to the report, as of the beginning of 2008 there were approximately 190,000 contractor personnel in the Iraq theater (which includes the surrounding countries). That's about equal to the number of military personnel there.

The report provides a fascinating breakdown of the ratio of contractor to military personnel in past wars. The records suggest the U.S. has historically relied much less on contractors, from the U.S. Revolutionary War (1 to 6), the Civil War (1 to 5), World War II (1 to 7), to Vietnam (1 to 5), and so on.

The historical low point for reliance on contractors, interestingly, was the Gulf War, where the ratio was 1 to 55. The report notes that Saudi Arabia "provided significant amounts of products and services" during that conflict. The conflict in the Balkans was the sole one to have a similar ratio, with both 20,000 soldiers and contractor employees involved.

What the report does not provide is a breakdown of contractor expenditures in past U.S. wars -- which makes one curious to see how the Iraq War would stack up against the cost of U.S. wars. (Here's a breakdown in 2008 dollars and as a percentage of GDP.)

The biggest contractor in Iraq, in both people and money terms, is KBR, which has 40,000 workers there. As of May of this year, KBR had earned some $24 billion since the war began.

KBR has been notable for other reasons, of course -- like accusations of political favoritism, (It was formerly a subsidiary of Halliburton, once headed by Vice President Dick Cheney.), overcharging and negligently endangering troops. The only other contractor to garner as much negative publicity has been Blackwater, due primarily to last year’s shooting of Iraqi civilians in Nisour Square. The report calculates that between $6 billion and $10 billion has been spent in Iraq on private security contractors like Blackwater.

But the contracting bonanza in Iraq has spread far and wide, and the questions raised by the report go beyond waste and abuse (which we've been diligently tracking in Scandal Watch). As James Risen writes in today's New York Times, it becomes a question of what the ramifications are of privatizing what used to be fundamentally governmental activities:

Peter W. Singer, a defense contracting expert at the Brookings Institution, said the biggest problem was that the administration contracted out so much work in Iraq, almost no thought had been given to an overall strategy to determine which jobs and functions should be handled by the government, and which could be turned over to private companies without damaging the military effort.

"These new numbers point to the overall question — when do you cross the line in terms of turning over too much of the public mission of defense to private firms," Mr. Singer said. "There are some things that are appropriate for private companies to do, but others things that are not. But we don't seem to have had a strategy for determining which was appropriate and which wasn't. We have just handed over functions to contractors in a very haphazard way."

How Taxpayer Money Is Wrapped Up in Georgian War

2008-08-12T10:40:00-05:00

by Sharona Coutts

Russia's announcement this morning that it will cease its offensive in Georgia has created a potential lull in what was a rapidly escalating military and diplomatic crisis.

Whether the fighting really ends, one result of the conflict is clear: it has thrown a bright light on that region's importance to global oil supplies. A pipeline that runs through Georgia is the second largest in the world.

But a little-reported fact is that American tax dollars were used to help fund big oil projects in the region.

Georgia sits between the rich oil deposits of the Caspian Sea in the East, and the friendly shores of the Mediterranean in the West. Since 2006, a 1,100 mile pipeline has pumped that crude from Baku, in Azerbaijan, westwards across the conflict-torn continent to tanker ships waiting at the Turkish city of Ceyhan. The multi-billion-dollar Baku-Tbilisi-Ceyhan pipeline is run by an international consortium, including American oil-giants Chevron and Conoco-Phillips.

The Daily Mail in the U.K. has reported that Russian planes have targeted the pipeline, and Georgia's president, Mikheil Saakashvili, told reporters at a conference call that the war is a Russian oil-grab to "control energy routes."

So, how is U.S. taxpayer money bound up in all of this?

It has to do with the role of the two government agencies, the Export-Import Bank (Ex-Im) and the Overseas Private Investment Corporation (OPIC), that lend money to private companies doing business overseas.

These agencies exist to promote U.S. business abroad, which they do by giving loans and guarantees for projects that are too big or, in many cases, too risky for the tastes of private banks and financiers.

"We exist to take risks that the commercial markets either cannot or are not willing to make," said Phil Cogan, spokesman at the Ex-Im Bank. "That's the reason for export credit agencies for the most part. It's to support the exporters of the United States because those exporters wouldn't be able to make the sale unless there was a guarantee or direct lending."

In the case of this pipeline, the Ex-Im Bank gave a $160 million guarantee to a group of banks that wanted to lend money to the companies involved in the project. If the project fails or goes up in flames (which it could do, literally) Ex-Im will bail out the private banks, and taxpayers will be left holding the bag.

Same deal for OPIC, which gave the project $100 million in "political risk insurance." In other words, the companies apparently weighed the risk of just the sort of conflict the region is now facing, and then went to a government agency for insurance.

Critics see these guarantees as a form of corporate welfare.

"If we're talking about the oil and gas industry, there's absolutely no need for the federal government to be investing in any new projects," said Keith Ashdown from Taxpayers for Common Sense, a non-profit that works to reduce wasteful government spending. "These guys are making money hand over fist, and they can be investing in their own new capital projects."

In the case of the BTC pipeline, activists and academics have been warning about the project's dangers for years, and arguing that taxpayers shouldn't incur the risk.

Ex-Im spokesman Cogan stresses that the government-funded bank usually brings in a net profit from the fees it charges for insuring risky projects. He also said that this loan is far from the biggest that Ex-Im has made.

Nor is the U.S the only country whose taxpayers helped make the deal happen. The biggest player in the project is British Petroleum, which owns just over 30 percent of the pipeline. The U.K.'s export credit agency, as well as the European development bank, also put money into the deal.

BP spokesman Robert Wine said despite the reports that the pipeline has been targeted by Russian planes, the "pipeline hasn't been affected by the conflict." He said that BP "continues to monitor the situation."

"The pipeline is a channel that runs through Georgia," he said. "We don't have business interests of any great note in Georgia, and clearly this is a matter for the governments of Georgia and Russia."

The U.S. Military’s $3.5 Billion Petty Cash Box for Iraq

2008-08-11T18:04:00-05:00

by Paul Kiel

The idea has natural appeal: Give money to U.S. troops, who with the benefit of daily, direct contact with Iraqis, will spend it where it can do the most good. It's called the Commander's Emergency Response Program (CERP), and for the five years of the Iraq War, it’s virtually the only thing about American strategy that has been spared criticism.

Washington Post reporters Dana Hedgpeth and Sarah Cohen took a hard look at the program, and you can see the results in a pair of stories, along with a database of more than 26,000 expenditures, in today's paper. The U.S. has so far spent some $3.5 billion on the program in Iraq.

None of the program’s failings come as a shock. Give commanders bundles of cash to distribute in a sometimes chaotic war zone, and the paperwork will be less than rigorous. About 1/6 of the projects in the database, which relied on government data, lack "key elements," the Post found, "such as the year, location or the amount actually spent." One hundred and thirty-five million dollars in CERP payments caught the attention of the Pentagon's inspector general earlier this year. The money had gone to U.S. allies in Iraq; the documentation only indicated that the cash had been expended "for the benefit of the Iraqi people."

CERP money is supposed to be reserved for "small-scale projects." But its flexibility has also proven irresistible for commanders wanting larger projects with fewer strings attached: The Post found that about $1 billion of the money spent so far has gone to projects with a price tag over $500,000, the ceiling for "small-scale" under the Army’s official definition. Sen. John Warner (R-VA) complains that CERP is turning into a "bank for development."

Many of the expenditures seem indisputably in line with CERP’s purpose. For instance, the $50 million in "condolence" payments paid to the families of killed or injured Iraqis. And then there are examples like a U.S. commander's attempts to get a glass factory in Ramadi up and running -- to mixed results. ($14,250 spent on "I Love Iraq" T-shirts might be judged more harshly.)

The U.S. military has issued a manual to try to guide commanders on how best to use the funds. But the whole point of the program is for commanders to be able to react to unique circumstances. So guidance remains somewhat broad. One litmus test for whether a project should be green-lighted is whether it would "embarrass" the Pentagon "if shown on 60 Minutes."

The program remains popular with commanders and the Iraqis who benefit. But perhaps the most interesting criticisms of CERP comes from a one-time adviser to Gen. David Petraeus, David Kilcullen, who argues that the easy money fosters dependency at the expense of long-term stability:

Kilcullen, … who examined CERP last year, said the payouts are like dealing heroin -- "easy development money that undercuts our efforts to improve their financial governance." He warned that the projects are a "rush" that often doesn't last.

And then there's the simple fact that soldiers sometimes simply don't know the best way to use reconstruction funds. As one Army captain puts it: "We're Army guys. We're not civil engineers. We're not economists. We can't gut-check a lot of these programs."

In Rebuke to Military, Jury Sentences Hamdan to Mostly Time-Served

2008-08-07T16:57:00-05:00

by Eric Umansky

A day after clearing Salim Hamdan of the most serious charges against him, a military jury today sentenced Hamdan to 66 months. Prosecutors in the U.S.'s first war crimes trial since WWII had originally pushed for a life sentence, and even after yesterday's verdict called for Hamdan to be sentenced to 30-plus years.

The jury -- which had been appointed by the convening authority itself -- deliberated for 70 minutes.

The judge had already stated that Hamdan would get credit for the five years he has spent at Guantanamo Bay, meaning he has only another five months of his sentence to serve.

"I wish you godspeed, Mr. Hamdan," the judge said after sentencing. "I hope the day comes when you return to your wife and your daughters and your country.''

''Insha'allah,'' replied Hamdan.

Even after Hamdan's "sentence" is up, the military can continue to hold him as an enemy combatant. He can be freed when one of two things happen: 1) the government decides that he is "no longer an enemy combatant" 2) the war on terror ends.

Was Hamdan’s Chauffeuring Really a War Crime?

2008-08-07T10:19:00-05:00

by Eric Umansky

Among the many oddities of the U.S.'s first war crimes trial since World War II is this: The war crime for which Salim Hamdan was convicted, material support of terrorism, has never before been considered a war crime.

As the nonpartisan Congressional Research Service put it in a report (PDF) last year, "Defining as a war crime the 'material support for terrorism' does not appear to be supported by historical precedent."

Hamdan was not convicted of being involved in any plots against civilians. Rather, he was found to have supported al-Qaida "through his service as a driver." There is little doubt that chauffeuring and occasionally serving as a bodyguard to Osama bin Laden violates criminal law. But "war crimes" are a different matter.

International law offers a kind of bargain: Soldiers are allowed to do things that would normally be criminal—namely, kill their enemy. At the same time, they can be prosecuted under international law for acts the world has decided are particularly heinous, such as rape, genocide and torture.

The problem with material support is that it’s never been considered one of those acts. "I can't see it being a violation of war to support combat," says David Glazier, a national security law expert at Loyola Law School and former naval officer.

Glazier, who wrote a thoughtful post himself about the Hamdan verdict, thinks the government should have treated Hamdan either as a prisoner of war or as a criminal, and instead has essentially cherry-picked its charge in branding a domestic law, material support, as a war crime.

"If you wish to subject someone to the burdens of the laws of war, they must then also grant them the legal benefits," says Glazier. "If they kill a soldier as a noncombatant, they shouldn't be tried for a war crime, they should be tried under criminal law, for murder."

The U.S.'s first material support laws were passed in the mid-1990s and have long been the focus of criticism themselves. (The laws ban not only support for specific acts of terrorism, but also "support" of any kind for organizations the U.S. has designated as terrorism organizations. The main concern is that it then allows guilt by association. As I reported earlier this year in a piece for Mother Jones, the government has relied heavily on the charge in building criminal cases against alleged terrorists.)

Material support was first labeled a war crime by the controversial Military Commissions Act of 2006, most widely known for stripping Gitmo detainees of their rights to habeas corpus. Early this summer, the Supreme Court ruled that stripping that right was unconstitutional. But the portion of the law enshrining material support as a war crime remains.

The issue is not just academic. Hamdan's lawyers will likely appeal his conviction. When they do that, his lawyers will almost surely argue to a federal judge that because material support wasn't a war crime before 2006, when the Military Commissions Act was passed, he can't be convicted under that law for something he did five years earlier.

The lawyers made that argument during Hamdan's trial at Gitmo. But the judge, Justice Roberts, didn't rule on that point, deciding instead that all of those arguments should be heard in an appeal after the tribunal was over. That means it's going to come up again -- possibly for the Supreme Court to decide.

Sharona Coutts helped research this story.