ProPublica: The Detention Dilemma

Now on Trial at Guantanamo Bay: Spiral Notebooks

2013-06-13T12:19:01-05:00

The Guantanamo Bay trials of alleged terrorists, restarted by President Obama in 2011, have been marked by secrecy, snafus, and delays. ProPublica’s Cora Currier is at Gitmo this week for one such case. Read her first dispatch, about arriving at the U.S.’s most infamous court.

***

On October 12, 2000, a skiff pulled up alongside the U.S.S. Cole, docked in Aden, Yemen, and blew up. The attack killed 17 sailors and nearly sank the Cole. It was one of Al Qaeda’s most lethal operations before 9/11.

Nearly 13 years on, prosecutors and defense lawyers are still in pre-trial hearings, arguing over spiral notebooks, whether a dead man can testify, and dozens of other legal questions ranging from mundane errors to constitutional challenges to the court’s authority. There’s no indication when the actual trial will be able to begin.

Welcome to the courts at Guantanamo Bay.

Abd al Rahim Al Nashiri faces the death penalty for allegedly being “in charge of planning and preparation” of the attack on the Cole, as well an attack on a French ship and an attempted bombing of another U.S. vessel. The 48-year-old Saudi has been in U.S. hands since 2002, first at a CIA secret prison and for the six last years at Gitmo.

In this week’s hearings, Nashiri sits in a wheeled office chair, unshackled, dressed in a white, oversize, short-sleeved shirt. (On a tour of the courtroom, we were told defendants had to sit in chairs without wheels.) His lawyer can’t say whether he’s fasting as part of the ongoing hunger strike at Guantanamo, but he appears to be a normal weight.

I’m watching the first day’s proceedings behind triple-paneled soundproof glass, looking into the courtroom, facing the judge, alongside legal observers and victims and family members of those harmed in the bombing.

We are not allowed to doodle, lest we reveal the layout of the room.

TVs above the window play the proceedings along with audio. Both have a controversial 40 second delay, allowing censors time to bleep out classified information.

So we all rise for the judge, then sit again as he takes his seat and starts talking, only to still be hearing nothing and watching, on TV, an empty chair. When the court recesses, the judge leaves the room, and we all remain standing, rapt at his still-speaking image on the TV screen.

The issue currently before the judge, James Pohl, is, well, according to Pohl: “This is an issue…” He paused, with a sigh.

“I won’t characterize what I think of the issue.”

In fact, the morning’s hearing covers a motion the defense has filed, seeking to clarify what, precisely, they can bring into meetings with their client. Recently, the government wouldn’t let them bring in a note-filled spiral-bound notebook, saying the wire, if removed, could be dangerous.

The prosecution offers solutions. The defense lawyers could, for example, take the pages they need from their spiral notebook and transfer them to a three-ring binder, Marine Major Christopher Ruge tells the judge. The defense lawyers’ notebook, Ruge notes, “comes three-hole punched.”

But when pressed on it, the prosecutor is not actually sure that binders are allowed.

Nashiri’s civilian attorney, Rick Kammen, jumps on the wavering to take issue with what he characterizes as an ever-changing, erratically enforced procedure. “Pens, eyeglasses – almost anything in the imagination of someone who sees danger everywhere – can be a weapon.” (Kammen wears a kangaroo pin on his lapel, for kangaroo court. He says he also keeps a stuffed kangaroo on his desk.)

Major Ruge says the military has to keep everyone safe: “A length of metal wire can be broken off of it, much like a paper clip, and used as a weapon.” A ruling on what constitutes contraband steps over the line into dictating day-to-day prison operations.

The judge turns to the defense. “What harm are you suffering, by simply bringing in a non-spiral notebook?”

“If we have material in the [spiral] notebook,” Kammen responds, “it renders the visit less effective.”

Another government counsel states for the record that three-ring binders would indeed be allowed. Some of the family members shake their heads. One of them chuckles.

Later in the day, Ronald Francis, whose 19-year-old daughter Lakeina was killed in the Cole attack, says that to spend time “on can I have a notebook with metal is really asinine. They need to get to the meat of what we’re here for.”

The judge asks, “Can the next commander come in and decide, I don’t like pens?”

Nashiri’s lawyer Kammen chimes in, “I can see another prosecutor saying, in deference to another commander, they’ve got to write in crayon.”

In the end, the judge sides with the defense, allowing them to call witnesses later this week to testify on the matter of spiral notebooks.

Other motions are dispensed with fairly quickly. One was to note a medical evaluation that had found Nashiri sane, but suffering from PTSD and depression. The cause of these ailments was not noted in the unclassified version, though the defense suggests it stems from his torture in CIA custody. Classified documents show Nashiri was waterboarded and subject to a mock-execution with a power drill. Nashiri has said torture led to his confession to the Cole attack.

Others drag on interminably.

In April, it was revealed prosecutors in another case had somehow ended up with defense emails (though didn’t read them) and defense files had disappeared off central servers.

The government says the problems were technical and are being remedied, and that it’s time to move on. The defense acknowledges the mistakes don’t appear to be intentional, but say they’re still not convinced their information is secure.

We also hear about the mysterious case of monitoring devices disguised as smoke detectors in attorney-client meeting rooms at the prison. In this instance, the arguments are still only over which witnesses to call, not the facts of the case, and again, the defense seeks to make it about their lack of faith in the fairness of the commissions system. The government maintains it’s a non-issue; no monitoring has or will occur. The judge rules we’ll hear testimony from a prison commander later in the week.

We do touch on weightier matters. Does the Sixth Amendment guarantee that defendants “be confronted with the witnesses,” apply to the military commissions? Is hearsay admissible?

As the New York Times reported in 2009, the public evidence of Nashiri’s role in the bombing includes second-hand statements from people who may be dead or impossible to bring to testify.

One such man is Fahd Al Quso, who was indicted for the Cole bombing, and then reportedly killed in a drone strike in Yemen last year.

Is his “testimony,” transmitted via FBI agents or old reports, still admissible?

Kammen begins, “If I pick up the paper and read a government witness has died –”

The judge interjects. “Is now unavailable.”

“Is now unavailable,” Kammen continues, “can the U.S. kill witnesses and then still use their evidence, their hearsay evidence?” If so, he says, the defense will need to prepare for the possibility, and do extensive research overseas.

The government “opposes the motion as unripe” -- that is, the harm the defense seeks to remedy is not yet apparent. The chief prosecutor, Brigadier General Mark Martins, says if and when the prosecution includes hearsay, then the defense can object.

Both sides are pushing on the military commissions’ sore spot – delays. The defense says it’s best to delay now – to rule whether hearsay is admissible – and avoid delay later, when the defense challenges it down the road.

The judge concedes, “I’m not going to sit up here and tell you it may be a quick process.”

“It’s going to be a hideously long process,” says Kammen.

On the second day of the hearings we also hear arguments about whether or not Nashiri can be banned from classified pre-trial hearings. He doesn’t have security clearance, after all. He can be present when he himself discusses classified information that he knows, the government says. But beyond that, it’s not guaranteed.

The defense team (which does have clearance), claims a Catch-22 – they can’t ask Nashiri whether he knows about classified information without revealing it.

Among the things that are classified: detainees’ treatment by the CIA. The defense argues that Nashiri’s torture is central to their case, and that Nashiri must be able to counter what the government says about it.

“Let's say some agency gives them incorrect information,” Kammen says. “He will never be in a position to say to us that's not true. And waiting 'til trial is way, way, way too late.”

During a court recess, the reporters are stuck in an awkward spot in a courtyard behind the courtroom, hanging out of the sun under a tarp tent. The legal observers debate the finer points of the arguments. The victims and family members are set apart, with their own escorts. One of them looks at the observers talking, mimes chattering with his hand, and rolls his eyes at John Clodfelter, who lost his son, Kenneth.

Later, Clodfelter fulminates against the “legalese.”

“They’re not even thinking about the people that were killed,” he says.

Gitmo Diary: Visiting the U.S.’s Most Infamous Courtroom

2013-06-12T14:50:33-05:00

by Cora Currier

June 13: This story has been corrected.

I’m down at the U.S. base at Guantanamo Bay, where Abd al Rahim al Nashiri is facing capital charges for the 2000 bombing of the U.S.S. Cole. Nearly 13 years later, we’re here for what are still pre-trial motions. The Gitmo trials, restarted by President Obama in 2011, have been marked by secrecy, snafus, and endless delays. After having followed Gitmo for years, this is my first visit.

***

The trip to Guantanamo Bay, my first, begins at Andrews Air Force Base at six in the morning. We board the plane, a Miami Air charter, in a strict pecking order: media at the very back, interspersed with observers from law schools and the likes of the American Civil Liberties Union, then military commissions personnel, attorneys, then finally, the judge and victims of the bombing and family members (VFMs, in commissions parlance).

As we descend into Guantanamo – skirting Cuban airspace, our flight captain reminds us – I can’t see much from my aisle seat, but it’s drier and browner than I expected, the water a beautiful blue-green. It’s hard to tell where the ultimate border of the U.S. base is. The hills are dotted with fences and guard towers. Dusty tracks give way to paved roads as we approach the beige buildings around the airport. The mountains in the background seem to be definitively Cuba, in shadow as they are.

Off the plane, we are scooted into the receiving line, a shaded porch-way with “no photos” on the fences. Our passports are checked (alas, there’s no special stamp) at a podium shaped like a guard tower. Our on-base public affairs officers meet us. They are cheerful and friendly, though each of them is being shadowed by their replacement, due to an upcoming tour rotation. There’s a greater than one-to-one ratio of officers to media almost everywhere we go.

Our constant minders herd us into a van and onto a ferry, where I stand near the back leaning on a big truck as we go across the bay, past some green marshes, past the mouth of the bay, traversed by a small barge and patrol boats.

Camp Justice is the area of Guantanamo where military commissions trials are held. It is separate from the detention facility.

Again we head into the vans, and to the Media Operations Center, in a giant white hangar: a lovely building, white and covered in gridded windowpanes. On top of a hill is the only building we’re allowed to photograph from the outside, the SCIF (Secure Compartmented Information Facility) where trials were once held, and which now functions as a watchtower. The courtroom is now housed in the Expeditionary Legal Complex, pronounced “elk.” (“Expeditionary,” we are told, because it could be picked up and moved, should, say, Gitmo be closed.)

Outside we see the trailer from which a QRT (Quick Response Team) watches the hearings -- without audio -- in case there is a “disturbance” and they have to storm the courtroom.

Then into a chain-link fence corridor covered in black fabric. Metal wheeling restraint chairs are lined up in a row. Then a mini shingled wooden barn, the kind sold at roadside expos of yard sheds and gazebos, in which sit two metal-detector chairs designed for “non-invasive orifice searches” for contraband. The officer in charge sits on one, but says the chairs must be off, as something in his hip usually sets it to beeping. Then the holding cells – five now, for the five men accused of plotting the 9/11 attacks, underscoring how specific all this is to the crime. The cells are two-roomed trailers, heavily bolted up.

In the first, a chair, a sink, a TV for watching court proceedings. In the interior room, a desk molded into the floor, a cot, a Tupperware containing a prayer mat, cap, and beads, towels, blankets. An arrow on the ground indicates the direction of Mecca. A metal circle welded to the floor is a “hard point,” for shackling. There are no windows but some dotted holes for vents in the back wall.

Then we see the camera-lined courtroom. Chain comes out of the ground by the outer edge of each of the defense side tables, under chairs without wheels, then also under the center of tables at the defense side, an adaptation from when detainees decided to represent themselves. Compliant detainees, we’re told, are not shackled. The wires of computers and microphones run through the furniture so that, our guide says, they cannot be used as a weapon.

We see the soundproof gallery from which we will watch the proceedings on a controversial 40-second audio delay, meant to protect against the disclosure of classified information.

The extreme secrecy surrounding so many aspects of the trial is a constant battle between the government, the defense, and the media. There’s a motion on the docket for this week so secret it doesn’t even have an unclassified name. The judge is hearing arguments this week on whether Nashiri himself will be allowed to know, even in general terms, what it’s about.

The government also takes the position that anything related to detainees’ time in CIA custody is still classified, despite the fact that the program has been acknowledged, ended, and much about it is in the public domain. So everything that the detainees say is presumed classified, since they are in a position to reveal classified information -- hence the 40-second delay. (A defense attorney in the 9/11 case has challenged that stance, as have the ACLU and media organizations.)

There is a big red siren light on the classification authority’s desk in the courtroom to indicate white noise. The light went off mysteriously during hearings in the 9/11 case earlier this year. No one knew who had pressed the button to censor the courtroom. The government later said it was an “original classification authority,” presumably the CIA.

We’re told they no longer have the power to cut the feed. That controversy, along with the discovery of a monitoring device disguised in a smoke detector in the rooms where defense attorneys met with their clients overshadowed this winter’s hearings. (The judge ordered those smoke-detector microphones disabled in February.) Then there was the April revelation that defense emails had been improperly accessed and files disappeared (the government maintains it was a technical glitch, and no emails were read.) The defense will try to bring all of this front and center in the week ahead.

Correction: This story previously said Guantanamo Bay's courtroom is housed in the "Expeditionary Legal Center.” In fact it's housed in the "Expeditionary Legal Complex.”

Six Claims on Detainee Torture, Skewered

2013-04-22T16:04:25-05:00

by Christie Thompson

Among the news that ended up being buried in the events last week: A nonpartisan think tank, the Constitution Project, released a scathing, 577-page report on the U.S.’s treatment, and torture, of detainees in the aftermath of 9/11. The investigation began in 2009, after Obama opposed creating a “truth commission.”

With a Senate investigation of detainee treatment still classified, the report from the bipartisan task force is the most comprehensive public review to date. The 11-member panel interviewed more than 100 former military officials, detainees and policymakers.

Among their findings: There is no compelling security reason to keep classified details about the CIA’s now-shuttered black prisons. The task force hopes their report will spur more government transparency on the treatment of detainees, starting with the release of the Senate investigation.

Here’s a rundown of previous claims skewered by the report:

Claim No. 1: The U.S. didn’t use torture.

“Perhaps the most important or notable finding of this panel is that it is indisputable that the United States engaged in the practice of torture,” the report concludes. The task force says that despite overwhelming evidence of torture, both government officials and many in the media have continued to present the issue as a two-sided debate.

The task force measured confirmed reports on detainee treatment against several international and domestic legal definitions of torture. The U.S.’s tactics unequivocally amount to torture, they found, under definitions the U.S. itself has used to accuse other countries of the same crime.

Former UN ambassador John Bolton rejected the task force’s findings, telling the Associated Press the report is “completely divorced from reality.” Bolton said a team of lawyers scrutinized the policies to ensure interrogation never crossed the line.

Claim No. 2: When torture happened, it was because of a few low-level “bad apples.”

The report details how the decisions to use “enhanced interrogation” techniques were not rogue entry-level soldiers, but rather came from decisions made at the top of the administration. As a former Marine general told the task force, "Any degree of 'flexibility' about torture at the top drops down the chain of command like a stone —the rare exception fast becoming the rule."

Claim No. 3: Only three terror suspects were waterboarded by the CIA.

The task force’s findings support and elaborate on a Human Rights Watch report, which detailed how the CIA tortured at least two Libyans with water and abused several others to “win favor with el-Gaddafi's regime,” the task force found.

The testimonies of the two Libyans undermine the Bush administration’s repeated claims that the CIA only waterboarded against three people.

Claim No. 4: Torture definitely worked.

Former Vice President Dick Cheney and others have claimed that abusive treatment saved “thousands of American lives.” But the report found no evidence that torture itself was actually useful. As Obama's former National Director of Intelligence Admiral Dennis Blair wrote, as quoted in the report, "There is no way of knowing whether the same information could have been obtained through other means."

The movie Zero Dark Thirty, which gets a shout out in the report, has fueled the debate about whether torture ultimately helped the U.S. find Osama bin Laden. Officials have pointed to the tips provided by one detainee, Hassan Ghul, who was beaten and deprived of sleep while held in a secret CIA prison.

But the report is skeptical of the connection. As the report notes, Senator Dianne Feinstein and other officials said key information Ghul provided was “acquired before the CIA used their enhanced interrogation techniques against the detainee.”

Claim No. 5: A third of released Gitmo detainees have returned to terrorism.

Many lawmakers have used the supposedly high rate of detainee recidivism to justify keeping detainees at Gitmo. The government has claimed that nearly a third of released detainees returned to terrorism. But the report noted that Gitmo prisoner shouldn’t be counted as “returning to the battlefield” if they were never there in the first place. A former Guantanamo commander told the panel that up to half of detainees “were mistakes.”

Government stats also include both confirmed and suspected reports of “re-engagement.” Nor, the report notes, does the government have “firm guidelines” on what counts as a return to terrorism.

Claim No. 6: It’s all behind us.

“We need to look forward as opposed to looking backwards,” Obama said in 2009. But the report details how the ongoing lack of transparency and oversight leaves the door open for abuse. The CIA’s prisons have been closed, but the report notes that the current Army Field Manual on Interrogation contains amendments made in 2006 allow for sleep deprivation, separation and stress positions to be used in interrogation.

The bipartisan task force also concluded that current treatment of prisoners at Guantanamo, such as force-feeding hunger striking inmates and keeping them in indefinite detention, could qualify as torture under international law. The committee couldn’t come to a consensus on whether the prison at Guantanamo should be closed.

Hunger Strikes and Indefinite Detention: A Rundown on What’s Going on at Gitmo

2013-04-18T09:45:34-05:00

by Cora Currier

April 25: This post has been updated to reflect new developments.

It’s been 11 years since the first detainees were brought to Guantanamo Bay. But the future of the prison, and the fate of the men inside it, is far from certain. As of April 25th, 94 men at Gitmo are currently on hunger strike, by the military's count. (See the Miami Herald's timeline tracking the strike as it grows.) Here’s a primer on what’s going at the island prison.

What started the hunger strike?

It began after guards allegedly mishandled detainees’ Korans in a cell search in early February — but it’s certainly become about more than the holy books.

The military says detainees have previously hidden “improvised weapons, unauthorized food and medicine” in the spines of the Korans, and that the February searches were standard, conducted by Muslim translators. (Koran searches had set off hunger strikes before, in 2005.)

Attorneys for hunger strikers say the detainees have offered to relinquish their Korans rather than have them searched. The military initially would not accept that option, but now says, “if they choose not to have one, they choose not to have one.”

In any case, just about everyone – from the International Committee of the Red Cross to the general in charge of U.S. Southern Command – agrees the strike comes out of growing frustration and hopelessness among detainees. As we detail below, there are few indications that Gitmo will be shuttered or detainees transferred in the near future. The last detainee to leave Gitmo, last fall, was dead.

General Kelly, of U.S. Southern Command, said last month that detainees had watched Obama’s State of the Union address, and heard no mention of Guantanamo. “That has caused them to become frustrated and they want to ... turn the heat up, get it back in the media,” Kelly said.

The military is sending extra nurses and doctors down, but as the New York Times recently framed it, any decision to transfer detainees will be made in Washington, so “prison officials’ power to alleviate the crisis is limited.”

In an account published in the New York Times, a Yemeni hunger striker named Samir Moqbel said he hoped “that because of the pain we are suffering, the eyes of the world will once again look to Guantánamo before it is too late.” (Moqbel had recounted his story by phone to his lawyers.)

Another detainee, a Saudi Arabian named Shaker Aamer, also recently wrote an op-ed. Calling himself “a bit of a professional hunger striker,” Aamer said “this one is a whole lot different.” Lawyers say the strike is far more widespread than the military’s count.

According to the military, two detainees have attempted suicide since the strike began.

Have there been clashes between guards and the prisoners?

Yes. In an early-morning raid on April 13th, soldiers in riot gear moved about 60 of the detainees from their communal living camp into individual cells. Guards fired four “less-than-lethal” rounds; they say some prisoners wielded makeshift weapons, constructed from broken broomsticks and plastic water bottles filled with rocks.

Military commanders told the Miami Herald that the once “compliant” detainees had been ignoring orders for months, “covering cameras, poking guards with sticks through fences, spraying U.S. forces with urine and refusing to lock themselves inside their cells for nightly sweeps.”

In January, there was an altercation on the facility’s new soccer field, which ended with guards shooting “one non-lethal round” at a group of detainees.

In a statement, the military said the detainees were being placed on lockdown to allow for “round-the-clock monitoring.” In recent years, the communal living arrangement had been redone to “feel more like a dorm.” Now, the Miami Herald reports, those men are confined to their cells, without TV, legal documents, and the other things they were previously allowed.

In turn, detainees’ lawyers have said that prison guards became stricter in recent months, and that mail and personal items have been confiscated in cell searches.

An attorney with the Center for Constitutional Rights, Omar Farah, told ProPublica that he and other lawyers feared that the move to individual cells would cut off information about the strike. “The primary way we’ve been getting information is through prisoners’ accounts of one other.”

Are the strikers being mistreated?

At least one detainee has alleged that the hunger strikers are being punished, by being forced to drink potentially unsafe tap water and cold temperatures in their cells. The military disputes that, saying the tap water is safe and bottled water is available. A federal judge ruled he did not have jurisdiction to weigh in on the prisoner’s treatment.

What about force-feeding?

As of April 25th, 17 detainees are being force-fed nutritional supplements through tubes inserted into their noses. The military says strikers “present” themselves for the procedure, though it also says passing out counts as consent.

Others have been tied down for feedings. Moqbel, in his account in the New York Times, said he was once tied to a bed for 26 hours last month. Now, he wrote, “Two times a day they tie me to a chair in my cell. My arms, legs and head are strapped down. I never know when they will come.”

The Red Cross and other groups oppose force-feeding; they say prisoners have a right to choose whether they eat. The U.S. military position is that it would be inhumane to let prisoners starve. A spokesman told the Miami Herald allowing a detainee to harm himself “is anathema to our values as Americans.”

How many prisoners are left at Gitmo?

166. Since 2002, a total of 779 people have been held there.

No one has been brought to Gitmo under President Obama. The last people to leave were two Uighur Muslims from China, who were resettled in El Salvador last spring, and Omar Khadr, a man who was transferred to prison in his native Canada last fall. Adnan Latif, a Yemeni, died in an apparent suicide in September. He was the ninth detainee to die.

Does the U.S. consider the detainees still there all dangerous terrorists?

No. In fact, about half the detainees have been approved for release. Here’s the government’s categorization of people held at Gitmo, as of last November:

56 have been cleared for transfer to their own or a third country. Last fall, the State Department made 55 of those names public.
30 Yemenis have been cleared to be sent back to Yemen, but are being held because of an unstable security situation there.
24 people have “possible prosecution pending.” (Though recent court rulings on the scope of military commissions may have shrunk that number.)
46 are being held in indefinite detention under the 2001 authorization for military force: they’ve been deemed too dangerous to release, but are not facing prosecution.
Seven are facing trial by military commissions. That includes Khalid Sheikh Mohammed and four others accused of plotting the 9/11 attacks.
Three were convicted in military commissions and are serving out their sentences or fulfilling plea bargains. (Four others were also convicted but transferred to their home countries.)

The U.S. won’t release the names of those it considers hunger strikers, and it’s not always clear which category detainees fall into. Some of those who have spoken through their lawyers are on the cleared-for-transfer list (Moqbel, of the New York Times op-ed, is not, though he claims he is among the group of Yemenis who may be transferred.)

Carol Rosenberg of the Miami Herald says she has been told that the 9/11 defendants and the rest of the 16 “high-value” detainees, who were brought to Gitmo from the CIA’s black-site prisons, are not participating in the hunger strike. They are held in a separate, secret section of the camp. (See the Herald’s “prison-camp primer” for descriptions of where the detainees are held.)

Why haven’t the people cleared for transfer been released?

Over the past few years Congress effectively prohibited bringing detainees to the U.S. and made it difficult to send them to other countries, by requiring an assurance that the individual would never pose a threat to the U.S. in the future.

Difficult, but not impossible – there are waivers in the legislation that allow the president to get around the restrictions in certain cases. Human rights groups are pushing the administration to use those waivers, but Obama has yet to do so. Four detainees have been sent abroad since the law on overseas transfers went into effect, but in each case, it was to fulfill a court-ordered release or a military commission plea agreement, which Congress allowed. (The Supreme Court has ruled the men at Gitmo have the right to challenge their detention in federal court.)

As for the Yemenis still at Gitmo, Obama announced a moratorium on transfers to Yemen after the attempted Christmas Day bombing of 2009. There are also fears about recidivism – a report this year from the Director of National Intelligence estimates that 16 percent of released detainees have “reengaged” in militant activities. (Most of them were released under President George W. Bush.)

Other countries have also called for the release of their citizens. The president of Yemen, which has worked closely with the U.S. on drones and counterterrorism, recently referred to Gitmo as “clear-cut tyranny.” Britain has also reportedly lobbied for the release of one of the hunger strikers, Shaker Aamer, who has British residency. The UN commissioner for human rights has said that “indefinite incarceration” at Gitmo “is in clear breach of international law.”

Why hasn’t Obama closed Gitmo?

The White House says he “remains committed” to closing Gitmo, but those plans have stalled in the face of congressional opposition.

One of Obama’s first acts in office was an executive order to shut down the prison within a year. He didn’t rule out continued military detention or trial in military commissions, but temporarily suspended the commissions and required a review of the status of the Gitmo detainees.

In a speech a few months later, Obama said that “the existence of Guantanamo likely created more terrorists around the world than it ever detained,” and had “set back the moral authority that is America's strongest currency in the world.”

Since then, lawmakers have passed restrictions and the administration has dropped many of its visible efforts to shut down Gitmo.

This January, the State Department shut down the office responsible for detainee resettlement. Even if transfer restrictions were loosened, it’s not clear what would happen to the prisoners who are being held indefinitely. A new periodic review process for the detainees was created in 2011, though it still hasn’t actually begun. Officials told the New York Times that agencies – in particular, the CIA – could not agree on how the process would deal with evidence obtained by torture. Military commissions started up again, with some changes -- though still plenty of controversy, including questions about government censorship and surveillance and what crimes can legitimately be charged.

What can outside observers see at Gitmo?

Not much beyond what the military wants them to see.

The competing claims about water quality, numbers of strikers, and the Koran searches underscore the limited, often one-sided, information that gets out. Detainees communicate mostly through their lawyers. The military controls access to the prison. It recently stopped commercial flights to the base, a decision met with anger from attorneys and quickly reversed. For a few weeks recently, reporters were shut out of the prison.

A Reuters photographer recently recounted his tightly-monitored visit, and what he was and wasn’t allowed to shoot (totally fine: signs saying “No Photos.” Not fine: detainees’ faces.) Carol Rosenberg, of the Miami Herald, also recently described the restrictions on reporting from Gitmo, which she’s been doing for 11 years. She’s never been allowed to speak to a detainee.

The Red Cross has access to prisoners and has been to Gitmo during the strike, though its findings are rarely made public. Last week, the group’s president called the legal situation of prisoners there “untenable.”

How much does Guantanamo cost?

A lot. A recent report from the Government Accountability Office said the prison costs, on average, $114 million per year, not including military personnel. A 2011 analysis put the annual cost per prisoner at $800,000 – as much as 30 times what it costs to keep someone in federal prison.

The Pentagon has proposed a more than $150 million overhaul of the facility this year.

Gitmo Defense Lawyers Say Somebody Has Been Accessing Their Emails

2013-04-11T11:12:23-05:00

by Cora Currier

Update, April 12: In a statement, Pentagon spokesman Lt. Col. Todd Breasseale disputed defense attorneys’ characterizations of the email and data breach described below, saying that none of the government prosecutors “saw the content of any privileged communications.”

The search was conducted by the Pentagon's IT department. Breasseale said the reason prosecution ended up with defense emails at all was likely because a security officer “miscommunicated the search parameters.” As soon as one prosecutor “realized the search results included privileged material, the searches completely ceased, and, upon agreement of defense counsel … the IT department deleted all the search results from the two searches,” Breasseale said.

As for lost data, Breasseale said that was due to a “nearly catastrophic server crash” and problems with satellites that had affected both the defense and the prosecution.

Read the whole statement here.

The long-troubled military trials at Guantanamo Bay were hit by revelations earlier this year that a secret censor had the ability to cut off courtroom proceedings, and that there were listening devices disguised as smoke detectors in attorney-client meeting rooms.

Now, another potential instance of compromised confidentiality at the military commissions has emerged: Defense attorneys say somebody has accessed their email and servers.

“Defense emails have ended up being provided to the prosecution, material has disappeared off the defense server, and sometimes reappeared, in different formats, or with different names,” said Rick Kammen, a lawyer for Abd Al Rahim Al Nashiri, who is accused of plotting the 2000 attack on the U.S.S. Cole.

The lawyers say they don’t know exactly who is accessing their communications. And it’s not yet clear whether the emails were intentionally grabbed or were scooped up mistakenly due to technical or procedural errors.

Either way, the lawyers are concerned.

In response to the apparent breaches, the military’s chief defense counsel ordered defense lawyers to stop using email for privileged or confidential communications.

“This follows on the heels of the seizure of over 500,000 e-mail containing attorney-client privileged communications as well as the loss of significant amount of defense work-product contained in shared folders,” Commander Walter Ruiz, one of the military defense counsels, said in an email.

The search of thousands of emails was revealed by the prosecution, attorneys say.

“The searches on their face looked to be fairly benign,” Kammen said. The defense emails turned up when prosecutors requested a search of prosecutors’ own emails. “The people who were doing the searches ended up providing all manner of defense material as well." It’s not clear what department, agency, or office did the search.

It is not possible to corroborate the attorneys’ accounts because the full documents are undergoing security review, and are not yet public.

The Pentagon declined to comment, citing the ongoing trial.

In recent months, defense lawyers also realized that files were missing from their shared and personal servers. There is no evidence that the missing files are connected to the email searches.

“The main thing is that the integrity of the system as the whole is in very serious question,” said Commander Ruiz. The order to stop using servers and emails, “essentially cripples our ability to operate,” he said.

Hearings in Nashiri’s case were scheduled for next week, but in response to a motion from his lawyers, military judge James Pohl has delayed the hearings for two months. Yesterday, lawyers for the 9/11 plotters also filed a motion regarding “Information Technology Corruption and Loss of Relevant Defense Files.”

These new concerns are the latest example of irregularities of military commissions overshadowing the actual facts of the cases brought before them. Pretrial hearings have been consumed by issues such as whether defendants can wear camouflage to court (they can), when mail can be read, and what exactly lawyers can discuss with or send their clients. The prosecution has also tried to prohibit “informational contraband,” including any material on “current political or military events in any country; historical perspectives or discussions on jihadist activities.” Copies of the 9/11 Commission Report and the memoirs of an FBI agent have been taken from defendants’ cells.

In cases before the commissions, defendants’ interactions with their attorneys are subject to strict controls. Orders aimed at protecting classified information govern most proceedings and lawyers have limited access to their clients. Defense lawyers previously had to get a security officer’s approval to use even mundane information from defendants. That requirement was loosened a bit, but details of the defendants’ time in CIA custody – including their own accounts of being tortured – are automatically classified.

There have been seven convictions under the military commissions. Another seven detainees are currently facing charges, and 24 others may yet be prosecuted. The government has deemed 46 detainees simply too dangerous to release but doesn’t plan to try them.

The Obama administration initially sought to try Khalid Sheikh Mohammed and the four other alleged 9/11 plotters in federal court in Manhattan, but reversed its position after heated opposition from Congress and New York City officials.

Though President Obama has thus far failed to fulfill his pledge to close Guantanamo, no one has been brought to the prison under the Obama administration. In recent months, a string of terror suspects have been extradited from foreign countries to face charges in U.S. courts.

Censorship Controversy Interrupts Trial of Gitmo Detainees

2013-02-01T11:51:07-05:00

by Cora Currier

When a pretrial hearing for Khalid Shaikh Mohammed and four other alleged 9/11 plotters began this week, an unknown censor shut off the audio feed from the courtroom even though no classified information was being discussed. Even the military commisson judge was caught by surprise, and he has now mandated that no one besides the security officer present in court may suspend broadcasting of the court proceedings, The New York Times reported. Last year, ProPublica covered the controversy surrounding the delayed broadcast and the handling of classified information in the case.

Cutting through the Controversy about Indefinite Detention and the NDAA

2012-12-07T09:41:32-05:00

by Cora Currier

Update (12/19): Congress yesterday scrapped an amendment to the NDAA which would have explicitly barred U.S. citizens detained in the U.S. from being held indefinitely, as we detail below. Instead, Congress settled on language stating that nothing in the 2001 Authorization for the Use of Military Force or in last year’s NDAA can be construed to deny habeas corpus or Constitutional rights to anyone in the U.S. That new provision doesn’t appear to do much, as the Supreme Court has already determined that all people have the right to challenge their detention in court. And it doesn’t explicitly address the issue of who can be detained in the U.S. without trial.

On Tuesday, the Senate passed the National Defense Authorization Act, or NDAA, a yearly military spending bill.

Last year, the bill affirmed the U.S.’s authority to hold suspected terrorists indefinitely and without charges. The provision had generated plenty of controversy, particularly about whether U.S. citizens could be detained indefinitely. This year, the Senate bill says that citizens can’t be detained in the U.S. – but concerns remain about the scope of detention powers.

We’ve taken a step back, run through the controversy, and laid out what’s new.

What does the law currently say about military detention?

Section 1021 of last year’s National Defense Authorization Act affirms the military’s ability under the law of war to detain people “without trial until the end of hostilities.”

It also says they can be tried at a military commission, transferred to another country or to “an alternative court” – leaving open the possibility of civilian trials.

Who can be detained?

Anyone who “planned, authorized, committed, or aided” the 9/11 attacks, or “harbored those responsible.” Also, anyone who been “part of or substantially supported” Al Qaeda, the Taliban, “or associated forces that are engaged in hostilities against the U.S. and its coalition partners.”

Does that include U.S. citizens?

Congress left that deliberately unspecified last year, essentially punting the issue to the courts.

The language in the bill didn’t outright permit or prohibit indefinite detention of U.S. citizens. The act stated that it wouldn’t affect “existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”

But existing laws and authorities don’t actually give a definitive answer. There were cases involving U.S. citizens held by the military under President George W. Bush, but no precedents were established. The Supreme Court ruled only narrowly on the case of Yaser Hamdi, on the basis that he was captured on the battlefield in Afghanistan. (Hamdi was releasedand went to Saudi Arabia in 2004.)In a second case, Jose Padilla was transferred to a civilian court. (For more legal details, see these backgrounders from the blog Lawfare and the Congressional Research Service.)

In signing the bill last year, Obama said that his administration “will not authorize the indefinite military detention without trial of American citizens.” Critics were quick to point out that this was a non-binding policy, and that the law left the door open for future administrations to interpret it differently.

But this year’s bill fixed all this confusion, right?

Kind of.

In a replay of last year’s debate, a flurry of proposed amendments went around the Senate in an attempt to clarify the language about indefinite detention. Ultimately, the Senate passed an amendment from Senator Dianne Feinstein, D-Calif., that seems to protect U.S. citizens:

“An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention.”

What about people detained in the U.S. who aren’t citizens or permanent residents?

They could still be indefinitely detained.

Human rights and civil libertarian groups criticized the amendment for falling short of the protections in the constitution under the Fifth Amendment, which says that any “person” in the U.S. be afforded due process.

In the floor debate, Feinstein said she agreed with critics that allowing anybody in the U.S. to be detained indefinitely without charges “violates fundamental American rights.” Feinstein said she didn’t think she had the necessary votes to pass a due-process guarantee for all.

So does that settle it? Citizens can’t be detained?

Depends which senator you ask.

Some voted for Feinstein’s amendment even though they think the military should be able to indefinitely detain people within the U.S. They think her amendment still allows it, because of the last clause – “unless an Act of Congress expressly authorizes such a detention.”

As the Hill reported, Senators Lindsey Graham, R-S.C., John McCain, R-Ariz., and Carl Levin, D-Mich., all claim that Congress’ 2001 Authorization for Use of Military Force does authorize the detention of citizens, even in the U.S. They cited the Hamdi case, despite the fact that he was captured abroad.

What about last year’s NDAA? Isn’t that an Act of Congress authorizing detention?

Not expressly. It gets back to that non-position that last year’s bill settled on-- “Nothing in this section shall be construed to affect existing law or authorities” about the detention of U.S. citizens.

Does the NDAA go farther than the post-9/11 AUMF?

On the surface, yes, but many courts have already used AUMF to affirm broad presidential powers.

The AUMF doesn’t mention detention, or Al Qaeda, the Taliban and associated forces, which the NDAA claims the U.S. has the authority to detain. It authorizes “necessary and appropriate force” against anyone involved with or harboring anyone involved with the 9/11 attacks.

But both Bush and Obama have maintained in court that the AUMF does authorize detention, and that its authorization applies to Al Qaeda, the Taliban, and “associated forces.”

So the detention section of the NDAA largely echoes the authorities that Bush and Obama have previously asserted and gotten through the courts.

What the NDAA does do, as Lawfare phrased it, is “put Congress’s stamp of approval” on these claims, which could have implications for future litigation. The Congressional Research Service report goes into more detail on the way that courts have interpreted “associated forces” and “substantial support”—phrases the NDAA doesn’t attempt to define.

Isn’t there a lawsuit going on over the NDAA?

Yes. Last year, a coalition of journalists and activists sued to block the indefinite detention provision on constitutional grounds. A U.S. District Court judge ruled in their favor in September, claiming that the government had overstepped in its interpretation of the AUMF. Her decision was stayed by an appeals court, who found it overly broad. The case is ongoing.

So what happens next?

The bill still has to be reconciled with the House version, which did not include an amendment to the detention provision like Feinstein’s.

Obama has threatened to veto the NDAA over other measures, including restrictions on transfers from Guantanamo prison. But he said the same thing last year, and ended up signing the bill into law.

Still Classified: Terror Suspects’ Own Accounts of Their Abuse

2012-10-10T12:35:40-05:00

by Cora Currier

Update, Feb. 1, 2013: When a pretrial hearing for Khalid Sheikh Mohammed and four other alleged 9/11 plotters began this week, an unknown censor shut off the audio feed from the courtroom even though no classified information was being discussed. Even the judge was caught by surprise, and he has now mandated that no one besides the security officer present in court may suspend broadcasting of the court proceedings, The New York Times reported.

Update, Dec. 12, 2012: A judge has ruled in favor of the government’s position, outlined below, that military commissions proceedings could reveal classified information. The judge argued that a delayed broadcast was “the least intrusive and least disruptive method” of protecting sensitive material, while preserving the public’s right of access to trials.

In a motion unsealed last week, the government proposed new ground rules for classified information in the trial of Khalid Sheikh Mohammed and four others charged with planning the 9/11 attacks.

The new order says the accused can't talk about their "observations and experiences" of being held by the CIA, including "the enhanced interrogation techniques that were applied to the Accused" — that is, waterboarding and other abuse.

As we reported earlier this year, the government maintains that many details of the CIA's detention program are still classified, despite widespread disclosures and an official acknowledgement by President George W. Bush in 2006. "Due to these individuals' exposure to classified sources, methods, or activities of the United States," an order filed in April read, anything the men say is "presumed to contain information classified as TOP SECRET / SCI."

That sentence would have required defense attorneys to get the approval of a security officer to disclose even mundane information such as a date of birth, if it came from the defendant.

The new protective order — which is pending a judge's approval — eliminates the line that all statements by the accused are presumed classified. In proposing the change, the government wrote it intended to "alleviate defense concerns" about the burden that presumptive classification added to their interactions with their clients. The government's new motion says that attorneys would only need a review of information "they know or have a reason to know is classified."

According to statements provided by a Pentagon spokesman, prosecution lawyers want proceedings to "be as open as possible, while fulfilling our legal obligation to protect classified information and personal privacy." They said it would be decided on a "case-by-case basis" whether this "narrower presumption" of classification would be applied to other military commission trials.

But when it comes to the CIA's detention program, the new order is more explicit than the old, stating that "the term 'information' shall include without limitation observations and experiences of the Accused."

The American Civil Liberties Union, news organizations, and James Connell, a lawyer representing one of the defendants, have challenged the government's authority to declare something presumptively classified, and to extend classification to a detainee's own statements. The ACLU filed a motion this spring arguing that the government forcibly "exposed" the detainees to this classified information, and that therefore the detainees couldn't be bound to a non-disclosure agreement.

The group also argues that because the CIA program is now outlawed and has been so widely discussed, there is no compelling national security need to keep the details secret. The ACLU and media groups oppose the 40-second delay the government has imposed on broadcasting case proceedings. The government says the delay simply allows the commission to censor classified information. (That's how the arraignments proceeded in May.)

The defense lawyer Connell said that in terms of the attorney-client relationship, the new proposal was an "important start." But as far as public access goes, the ACLU's lead lawyer on the case, Hina Shamsi, says that the new order "makes explicit what the government is seeking to do — prevent the public from hearing from the defendant's own mouths their experiences of CIA torture."

The prosecution said the more detailed language about the CIA program in the new order is intended to make it "clear that the obligation to protect all classified information remains."

The judge presiding over the military commission, Army Col. James Pohl, would have to accept the government's proposal for it to go into effect in the case. Pohl approved a similar protective order last year in the case of Abd al Rahim al Nashiri, who was allegedly behind the 2000 attack on the U.S.S. Cole. (That order has also been challenged by news organizations).

Hearings on the public access issue and Connell's opposition to presumptive classification are scheduled for next week. Originally intended for August, they were postponed due to Hurricane Isaac.

Gitmo Detainee’s Body Being Held in Secure, Undisclosed Location

2012-10-04T14:42:33-05:00

by Cora Currier

Update (11/29): A military medical examiner has ruled Latif's death a suicide. According to the New York Times, he died from an overdose of psychiatric drugs. The investigation into how Latif obtained a lethal amount of medication is still ongoing. The Times also says Latif's body is now frozen, at a U.S. Air Force base in Germany. A Yemeni official said that Latif's remains would be returned to Yemen "in the upcoming days."

Adnan Farhan Abdul Latif had been at Guantanamo for nearly 11 years when he died last month, despite being recommended for release many times. But even in death, his travails aren't over. His body hasn't been sent back to his home country of Yemen, and it's no longer at Gitmo.

It's being held in an undisclosed location.

"Mr. Latif's remains are being handled with the utmost care and respect by medical professionals and are being maintained in an appropriate facility designed to best facilitate preservation," said a Defense Department spokesman, Lt. Col. Todd Breasseale. "His remains are no longer at JTF-Guantanamo Bay."

Lt. Col. Breasseale said the U.S. is responding to Yemen's "wishes that we maintain the remains until a time when they are prepared to receive them."

A Yemeni official said his government "will not accept the remains until we get an official autopsy and an investigation report. We just want to know what happened." The official, who declined to be named, also said that the government was in touch with Latif's family.

The Joint Task Force at Guantanamo says it has conducted an autopsy and opened an investigation into the death, but has not yet announced a cause of death. According to the military's initial statement, Latif was found unconscious in his cell on Sept. 8 and could not be revived by medical staff.

As we laid out in a timeline last week, Latif was never alleged to be a high-level terror suspect. In 2010, he successfully challenged his detention in federal court only to have the decision overturned on appeal. Latif was also recommended for transfer out of Guantanamo by the military several times, beginning as far back as 2004.

Eight other detainees have died in Guantanamo, several by apparent suicide; another Yemeni died in 2009 and according to local news reports, his body was repatriated within days. Breasseale, the Defense spokesman, said that "there have been delays before" in repatriating remains, but would not give further details.

Latif's lawyers say he was mentally unstable, and attempted suicide on several occasions. They have also said that he did not receive adequate medical attention.

Latif's father, Farhan Abdul Latif, gave an interview to the Emerati publication The National last month in which he said, "This case is far from over. We are holding US President Barack Obama responsible for the killing of my beloved son."

Latif's Guantanamo saga began in 2002, when he was among the first detainees to arrive at the prison. He had been captured along the border of Afghanistan by Pakistani police and turned over to the U.S. He said he was traveling to Pakistan in search of medical care; the U.S. says he was going for military training. A federal judge ruled in 2010 that the government could not prove his connection to Al Qaeda or the Taliban, though that decision was reversed a year later by an appeals court.

One factor complicating a potential release was his Yemeni citizenship. Following the Christmas Day bombing attempt in 2009, a plot that originated in Yemen, the Obama administration announced a moratorium on detainee transfers to the country due to security concerns.

Many of the Yemenis who remain at Guantanamo are in limbo because of that ban. The State Department recently released a list of 55 detainees approved for transfer. By human rights lawyers' counts, at least 26 of those are Yemenis. The government has previously indicated that there is a separate group of 30 Yemenis being held at Guantanamo who the government says may be released if and when the other 26 leave.

Yemen's President, Abdu Rabbu Mansour Hadi, who took office earlier this year, spoke about Guantanamo in a meeting with U.S. Attorney General Eric Holder last week. Lawyers for Yemeni detainees say they have been encouraged by Hadi's apparent commitment to the issue.

Wells Dixon, an attorney at the Center for Constitutional Rights who has represented several detainees, says that Yemen could increase pressure on the U.S., as Tunisia, Egypt, and some European nations have done. "With the State Department list, President Hadi needs to ask for the return of those men by name, and needs to do so in the context of the bilateral relationship between Yemen and the U.S.," Dixon said.

The Bush Administration’s Oft-Repeated (and Now Challenged) Waterboarding Claims

2012-09-17T12:43:22-05:00

by Cora Currier

For many years, Bush administration officials have said that the CIA waterboarded only three terror suspects. Despite nearly endless revelations and investigations about the U.S.'s treatment of detainees, there has never been evidence contradicting those claims. But that changed earlier this month.

Human Rights Watch recently released a report detailing the accounts of 14 Libyan men who claim they were detained and, in some cases, subject to harsh interrogations by the U.S. before being transferred back to Libyan prisons, where they also faced abuse.

One man, Mohammed Al-Shoreoiya, provided a detailed account of being waterboarded "many times" while in U.S. custody in an Afghan prison between 2003 and 2004. Another man described a similar form of water torture, conducted without a board.

None of the men's accounts could be confirmed, but as the New York Times noted, the detainees did not seek out Human Rights Watch, and their descriptions of their treatment, including waterboarding, are consistent with CIA procedural documents that have been made public.

The CIA first confirmed waterboarding in February 2008, when then-CIA director Michael Hayden told a Senate committee that "only three detainees" had been waterboarded — Khalid Sheikh Mohammed, Abu Zabaydah, and Abd Al Rahim al-Nashiri. No one, he said, had been subjected to the process since 2003. That claim has been repeated by former President George W. Bush and top officials from his administration. Former Defense Secretary Donald Rumsfeld has also noted that the military did not waterboard.

A spokesman for the CIA told ProPublica that "the Agency has been on the record that there are three substantiated cases in which detainees were subjected to the waterboarding technique under the program."

Here are top Bush administration officials stating, again and again, only three detainees were waterboarded [emphasis added]:

George W. Bush

Of the thousands of terrorists we captured in the years after 9/11, about a hundred were placed into the CIA program. About a third of those were questioned using enhanced techniques. Three were waterboarded.

– November 2010, in his memoir, Decision Points.

President Bush also repeated the line in interviews that fall with the Times of London and Fox News.

Dick Cheney, former vice president

It is a fact that only detainees of the highest intelligence value were ever subjected to enhanced interrogation. You've heard endlessly about waterboarding. It happened to three terrorists.

-- May 21, 2009: Dick Cheney, in a speech at the American Enterprise Institute.

In 2009, Cheney made the same claim in another speech and in interviews with the Washington Times, CNN and CBS. In 2011, he mentioned it again in a speech at AEI.

Donald Rumsfeld, former defense secretary

[Michael Hayden] looked at all the evidence and concluded that a major fraction of the intelligence in our country on al Qaeda came from individuals, the three, only three people who were waterboarded... no one was waterboarded at Guantanamo by the U.S. military. In fact, no one was waterboarded at Guantanamo, period. Three people were waterboarded by the CIA, away from Guantanamo and then later brought to Guantanamo.

-- May 3, 2011, in an interview with Fox News.

Rumsfeld repeated the line that year in interviews with CNN, CBS, the Associated Press, Charlie Rose and in a speech in February 2012.

Michael Hayden, former CIA director

Let me make it very clear and to state so officially in front of this committee that waterboarding has been used on only three detainees. It was used on Khalid Sheikh Mohammed, it was used on Abu Zubaydah, and it was used on Nashiri. The CIA has not used waterboarding for almost five years. We used it against these three high-value detainees because of the circumstances of the time.

–Feb. 5, 2008, in testimony to a Senate committee.

Hayden also reiterated the three-person figures in a memo circulated that month to CIA employees and on Meet the Press that March. He repeated it again in an interview with Newsweek in 2009.

John Yoo, former Justice Department official

Waterboarding we think is torture, but it happened to three people. The scale of magnitude is different....We've done it three times."

--June 1, 2008, in an interview with Esquire Magazine.

Yoo also said three people had been waterboarded in a June 2008 congressional hearing.

Karl Rove, senior adviser to Bush

[Coercive techniques] were used against some thirty hard-core terrorist detainees who had successfully resisted other forms of interrogation. Only three were waterboarded.

–March 2010, in his memoir, Courage and Consequences.

Michael Mukasey, former attorney general

The fact is that Khalid Sheikh Mohammed, who was subjected to enhanced interrogation techniques, including waterboarding — he was one of three people who were waterboarded — did disclose the name — the nickname actually, which was the name that this courier actually used — in the course of the questioning that took place after enhanced interrogation techniques.

--May 17, 2011, in remarks at the American Enterprise Institute.

Jose Rodriguez Jr., former director of the National Clandestine Service at the CIA

In fact, only three detainees: Mohammed, Zubaydah and one other were ever waterboarded, the last one more than nine years ago.

-- May 10, 2012: Jose Rodriguez Jr., in an op-ed on CNN.com

Rodriguez also mentioned the figure in interviews this spring with Fox News and the New Yorker.

Bill Harlow, who co-authored Rodriguez' book on interrogations, said that Rodriguez stands by his statement. "These procedures were not done without extensive documentation and authorization, as part of an officially approved program, and all the documentation there shows three individuals," Harlow said.

The other officials we've cited did not respond to requests for comment.

President Obama came into office proclaiming a ban on torture, stating that waterboarding was unequivocally a form of torture, and making the infamous "torture memos" public. But the administration has said no one would be prosecuted for waterboarding or other interrogation methods previously sanctioned by the government, and announced last month it would close the last two investigations into CIA abuse.

A Justice Department spokesman would not comment on whether the government ever investigated the Libyan cases. Laura Pitter, the author of the Human Rights Watch report, said that none of the men she interviewed said they had been contacted by U.S. investigators about their detention.

The CIA spokesman said that he could not comment on specific allegations, but that "the Department of Justice has exhaustively reviewed the treatment of more than 100 detainees in the post-9/11 period — including allegations involving unauthorized interrogation techniques — and it declined prosecution in every case."

Newly Released Memo Inadvertently Reveals CIA Held (and Abused) Missing Prisoner

2011-05-03T14:57:03-05:00

by Dafna Linzer

Update May 3, 2011: According to various reports, a U.S.-held detainee named Hassan Ghul provided key intelligence on the courier who ultimately led authorities to Osama bin Laden. In 2009 we reported that, despite the U.S. government’s silence on his case, Ghul had been captured in Iraq and held in a secret CIA prison. His whereabouts today are still unknown as are those of dozens of others.

This story was originally published on April 16, 2009.

Among the OLC memos released today, one appears to inadvertently reveal that a top al-Qaida suspect captured in northern Iraq in January 2004 was held by the CIA in a secret prison.

After Hassan Ghul was arrested in early 2004, President Bush told reporters: "Just last week we made further progress in making America more secure when a fellow named Hassan Ghul was captured in Iraq. Hassan Ghul reported directly to Khalid Sheik Mohammad, who was the mastermind of the September 11 attacks. He was captured in Iraq, where he was helping al Qaeda to put pressure on our troops."

Military officials and former CIA director George Tenet described Ghul as an al-Qaida facilitator who delivered money and messages to top leaders.

The U.S. government never publicly discussed Ghul again.

The 9/11 Commission report said Ghul was in "U.S. custody." But the government itself never discussed Ghul’s whereabouts. And the CIA has never acknowledged holding Ghul.

Three years after his capture, human rights groups were surprised when Ghul was not included among 14 high-value detainees who were transferred out of the CIA’s black sites program and sent to Guantanamo Bay, Cuba, in 2007.

Since then, he has been considered a missing, or ghost detainee. But in the heavily redacted OLC memo dated May 30, 2005, government censors appeared to have missed a single reference to his name and confinement during a lengthy description of the interrogation techniques used against him. The reference can be found at the bottom of Page 7 in the memo, where Ghul’s surname is spelled "Gul."

According to the memo, Ghul was one of 28 CIA detainees at the time who had been subjected to the agency’s "enhanced interrogation techniques." Specifically, the memo says he was subjected to "facial hold," "facial slap," "stress positions," "sleep deprivation," a technique called "walling," in which a detainee’s shoulders are repeatedly smashed against a wall, and the "attention grasp," in which the detainee is placed in a choke-hold and slapped.

So it appears we now have evidence Ghul was in a CIA prison. Where he is today is still a mystery.

We’ve called the CIA, and they declined to comment.

Gitmo and the Federal Judiciary: Our Coverage of the Habeas Lawsuits

2011-04-25T17:26:47-05:00

by Susan White

The WikiLeaks documents released on Sunday night have raised again the legal and moral dilemma surrounding the indefinite detention of the Guantanamo prisoners, an issue that former ProPublica reporter Chisun Lee covered for more than two years. On Aug. 21, 2009 Lee wrote that the federal judges who were reviewing the habeas lawsuits filed by many Guantanamo inmates had found that more than half of the men whose cases they had completed at that point were unlawfully detained.

That story was accompanied by a chart containing documents and information about 53 Guantanamo detainees whose lawsuits seeking freedom had been decided by the judges. In a Jan. 22, 2010 article, three federal judges discussed their concerns about the Guantanamo cases in lengthy interviews with Lee.

In Gitmo Opinion, Two Versions of Reality

2011-04-25T07:34:53-05:00

by Dafna Linzer

Update April 25, 2011: On Sunday night, a number of news outlets and WikiLeaks published a trove of classified documents on detainees at Guantanamo Bay. ProPublica has been reporting on Gitmo and the issues surrounding indefinite detention for more than two years. In October 2010, Dafna Linzer revealed how the Obama administration censored one federal judge's Gitmo decision that had questioned the government's evidence against a detainee.

This story was originally published on Oct. 8, 2010 and co-published with The National Law Journal.

When Judge Henry Kennedy Jr. ordered the release of a Guantánamo Bay detainee last spring, the case appeared to be a routine setback for an Obama administration that has lost a string of such cases.

But there turns out to be nothing ordinary about the habeas case brought by Uthman Abdul Rahim Mohammed Uthman, a Yemeni held without charges for nearly eight years. Uthman, accused by two U.S. administrations of being an al-Qaida fighter and bodyguard for Osama bin Laden, is among 48 detainees the Obama administration has deemed too dangerous to release but "not feasible for prosecution."

A day after his March 16 order was filed on the court's electronic docket, Kennedy's opinion vanished. Weeks later, a new ruling appeared in its place. While it reached the same conclusion, eight pages of material had been removed, including key passages in which Kennedy dismantled the government's case against Uthman.

In his first opinion, Kennedy wrote that one government witness against Uthman had been diagnosed by military doctors as "psychotic" with a mental condition that made his allegations against other detainees "unreliable." But the opinion the public sees makes no mention of the man's health and discounts his testimony only because of its inconsistencies.

The alterations are extensive. Sentences were rewritten. Footnotes that described disputes and discrepancies in the government's case were deleted. Even the date and circumstances of Uthman's arrest were changed. In the first version, the judge said Uthman was detained on Dec. 15, 2001, in Pakistan by Pakistani authorities. Rewritten, Kennedy said in the public opinion that Uthman admitted being captured "in late 2001 in the general vicinity of Tora Bora," the cave complex where bin Laden was thought to be hiding at that time.

The creation of the additional opinion stemmed from a mishap inside the Justice Department: Kennedy's first opinion was accidentally cleared for public release before government agencies had blacked out all the classified information it cited.

While the government privately took responsibility for the error, it initially refused to correct it. Two people familiar with the discussions said prosecutors in the Justice Department's Civil Division gave Kennedy a choice: his entire decision would remain classified or he could write a new version that did not reference classified evidence.

Justice Department sources offered a different account. They said the department later relented and gave Kennedy a properly redacted version of the opinion, in which classified material had been blacked out. The sources said this opinion was meant to be published. But for reasons that remain unclear, the edited opinion became the starting point for the creation of an entirely new version.

Matthew Miller, a spokesman with the Justice Department, said "the department's practice in all of these cases is to propose release of a properly redacted opinion."

The second opinion, drafted after a contentious exchange between Kennedy and the prosecutors, did not refer to the earlier version and gave no indication material had been removed.

Legal scholars and classification experts said the drafting of a second opinion was a deception. All previous opinions in Guantánamo habeas cases have noted when material has been blacked out or removed to protect security.

Stephen Gillers, who teaches legal ethics at New York University School of Law, said Kennedy may well have had a legitimate concern about "national security issues."

"But that concern then inspired him to participate in the creation of a parallel universe that fools everyone except a small circle of judges. We don't allow the justice system to create false impressions," Gillers said.

ProPublica obtained the original version of Kennedy's opinion when it appeared briefly in the court record and conducted a line-by-line comparison with what was published five weeks later. That comparison, highlighting information that was removed, can be found here.

Reporting for this story was complicated by the fact that much of the evidence is classified, and judges, lawyers and prosecutors are barred from discussing most aspects of the litigation. But an examination of the opinions and additional documents, as well as interviews with government and intelligence officials, former military prosecutors and key players in the habeas cases, makes it possible for the first time to publicly examine the evidence against a detainee designated for indefinite detention.

To justify Uthman's incarceration, the government relied on statements from five current or former detainees who were previously discredited by judges in other cases, questioned by internal Obama administration assessments or found unreliable by military psychiatrists because they were mendacious, mentally ill or subjected to torture.

Kennedy's first opinion reveals that some of the government's evidence came from a detainee who committed suicide at Guantánamo three years ago after months of hunger strikes. In the second opinion, the detainee's name is concealed, making it impossible for the public to know he is dead.

DOJ's Miller said witness testimony is thoroughly reviewed before it is presented. "In every habeas case where we ask the court to rely upon detainee statements, we do so because we believe courts can and should consider their accounts based on the totality of the evidence," Miller said.

The Justice Department has appealed Kennedy's ruling and officials there declined to say what they might do if the government does not prevail.

Uthman, according to senior government officials, is on the secret list of 48 Guantánamo detainees who the Obama administration designated for indefinite detention and, officials said, he is the first of those men to win his habeas petition.

Further complicating matters, Uthman hails from Yemen -- a country the White House has deemed too unstable to handle such a transfer. Should he send Uthman home, President Obama risks a fierce political backlash from Republican lawmakers eager to portray the president as weak on terrorism.

Disclosure of the Uthman case comes at a pivotal moment in the government's complicated efforts to prosecute detainees and close the prison at Guantanamo Bay, Cuba. On Oct. 6, a federal judge in New York barred the government from using its main witness against a terrorism defendant because the information that led investigators to the witness was obtained through torture.

Botched Classification

When Kennedy, who serves on the U.S. District Court for the District of Columbia, ruled in February that Uthman was being improperly detained, his 27-page opinion was turned over to a court security officer for classification review.

The judges themselves have very little insight into the process and no sway over what is redacted. Government security officials review filings in the habeas litigation and other cases involving classified evidence and remove sensitive information.

In the Uthman case, that clearance process took three weeks. Kennedy's decision was stamped "Redacted," by the court's security officer and returned to his chambers on March 16. The deletions were minimal. For the first 16 pages, the only word blacked out was "secret," stamped at the top and bottom of each page.

Kennedy's clerk added the document to the electronic court file late in the day. Twenty-five hours later, the security office sent out urgent notices to attorneys and the judge that the opinion had not been ready for release and needed additional deletions. The decision was promptly removed from the public docket.

In a closed hearing in his courtroom four days later, Kennedy lashed out at the government for releasing classified information. He and Justice Department attorneys then argued over what to do, according to three sources familiar with the discussion.

Kennedy insisted that the reasoning behind his first habeas ruling be made public. But the Justice Department resisted releasing it in redacted form, arguing that blacked out portions would call attention to the exact material the government wanted to conceal.

With Uthman slated for indefinite detention, the stakes were high.

During the next month, government lawyers scoured the Internet for the original decision; the legal database Westlaw was asked to remove it from archives; defense attorneys were instructed to destroy their electronic copies.

Even the court docket was altered. When the opinion was originally posted on March 16, the docket noted Kennedy's grant of the writ of habeas corpus to the petitioner. Today, the entry for March 16 simply reads: "Document Entered In Error Erroneously."

Kennedy ordered the Justice Department to explain how the information was released and to suggest solutions. In the written response, according to three people who saw it, the department took responsibility for the error. Kennedy rejected the government's initial attempt to keep the opinion classified, insisting on other options, according to three people with knowledge of the matter.

One Justice Department source said the department relented, gave Kennedy a properly redacted copy of his opinion, and expected him to publish it. But two others said no such intention was conveyed to Kennedy.

Classification experts could not recall another case in which a second decision was secretly created.

"Reconstituting and replacing a judicial opinion without public notice is active deception," said Steven Aftergood, a classification expert with the Federation of American Scientists in Washington. "There is a role for classification and there are things that need to be redacted, but there is never a justification for deception in the judicial process and that's what this is," Aftergood said, after reviewing both versions of Kennedy's ruling in the Uthman case.

Two senior officials in the Obama administration and two others with direct involvement in habeas cases were surprised to learn that Kennedy's final opinion was a different version than the original.

Changing the Record

Uthman was 21 years old and traveling with about 30 other men when he was taken into custody by Pakistani police in the town of Parachinar, near the Afghan border. It was Dec. 15, 2001, and U.S. troops were in the middle of a five-day battle against an al-Qaida stronghold known as Tora Bora, where bin Laden was believed to have taken shelter. Parachinar and Tora Bora are 12 miles apart but separated by a treacherous mountain range that takes two to three days to traverse.

The government maintains that Uthman was in Afghanistan to fight for bin Laden; Uthman has claimed he went there to teach the Quran to children. Some facts of his story are not in dispute, some critical ones are. They look different depending on which of Kennedy's two opinions you read.

Kennedy's original opinion noted that Uthman was seized in Parachinar; that he reached the town after an eight-day trek from the Afghan town of Khost, nowhere near Tora Bora; and that his journey to Pakistan began around Dec. 8, 2001. Those facts make it difficult to portray Uthman as a fighter in a battle that took place between Dec. 12 and Dec. 17 at Tora Bora. Two footnotes in the original opinion note that the government does not contest that Uthman was taken into custody in Parachinar.

Both were removed in the second opinion and Kennedy substituted wording to write instead that Uthman admitted he was seized "in late 2001 in the general vicinity of Tora Bora, Afghanistan."

The intent of this editing may have been to conceal the role of the Pakistanis in capturing al-Qaida fighters although those details were long ago declassified. But the effect was to link Uthman more closely to the retreat of bin Laden and his inner circle through Tora Bora.

It is unclear precisely what restrictions or classification requests guided Kennedy's alterations. Neither the judge nor the Justice Department would say.

Gillers said such editing has an effect on public opinion, even when it doesn't change the outcome of the case.

"The ability to influence Kennedy's opinion gives the government a public relations advantage," Gillers said. "These battles are fought outside the court system as well as within it."

Another advantage has been the government's ability to largely conceal the identities of its witnesses.

In ordinary federal proceedings, from mob cases to white-collar crime, prosecutors would be loath to attempt such strategies because repeated use of a discredited witness would provide a significant opening to defense attorneys. In the habeas cases, it is difficult for defense lawyers and judges to learn of the roles played by flawed witnesses in previous cases.

The issue arose in a separate habeas case in May 2009, when Judge Gladys Kessler of the U.S. District Court for the District of Columbia noted that a government witness had been diagnosed by Guantánamo medical staff as suffering from "psychosis." In a footnote, she said she was troubled that the diagnosis had come to her attention "through the diligent work" of the defense attorney "and not as a result of the government's obligation to provide" it.

Attorneys with security clearances can access classified information the government plans to raise in court at a secure facility near the Pentagon. But the material is not easy to use.

The facility is staffed by court security officers and Justice Department officials who determine what information the lawyers can remove from the facility, including, in some cases, their own notes. No classified information can be shared over the telephone or Internet, a significant burden for lawyers who reside outside the Washington area.

"It's monumentally difficult to fight these battles when the government holds all the cards," said David Remes, one of the attorneys representing Uthman. Neither Remes nor Uthman's other Washington attorneys, including William Livingston at Covington & Burling, would discuss the details of the Uthman case.

Near Total Secrecy

Although President Obama inherited many aspects of U.S. detention policy from his predecessor, Guantánamo detainees have been fighting their detentions in the U.S. District Court for the District of Columbia almost entirely on his watch.

The U.S. Supreme Court ruled in June 2008, as Obama was campaigning for president, that detainees could challenge their detentions in federal court under the constitutional doctrine of habeas corpus, which protects individuals from unlawful imprisonment by the government.

Obama, still a senator then, issued a statement calling the ruling "an important step toward re-establishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy." The first challenges were decided on Nov. 20, just three weeks after Obama's election.

Lawyers from the Justice Department's Civil Division handle the Guantánamo litigation in coordination with intelligence agencies and the Department of Defense, which acts as warden of Guantánamo. The litigation process was built around the government's assertion that the bulk of the evidence is classified, a claim that has enabled the government to operate under a cloak of near total secrecy, with judges and defense attorneys barred from publicly discussing most aspects of the litigation. Court filings that reveal details about the cases undergo classification review before they are made public.

Intelligence and military officials take the lead in determining what can be released. As this story was going to publication, the Justice Department released an unclassified version of its appeal brief in the Uthman case. A number of details that were excised from Kennedy's final opinion appear in the appeals brief.

Justice Department spokesman Miller said, "as a general matter, Justice Department litigators are not responsible for classification or declassification decisions in habeas cases."

Officials at other agencies said they had a fairly free hand in removing information supplied for the government's case. "Whenever a court security officer identifies a document slated for posting on the court's public docket as potentially containing classified information, the officer refers that document to appropriate agencies for classification review," Maj. Tanya Bradsher, a spokeswoman for the Pentagon, said.

One government official who spoke on the condition of anonymity acknowledged that the classification process has been plagued with inconsistencies and that no one is coordinating the effort. In most declassified habeas filings, the names of all detainee-witnesses are removed; in others, a name or two slips past the redaction process.

Some government-ordered deletions clearly appear designed to conceal names of confidential informants, associations with foreign intelligence services and the identities of certain federal agents. But the Uthman case shows that many of the deletions go further.

"This censorship has nothing to do with protecting 'national security' and everything to do with covering up government mistakes and malfeasance," said Jonathan Hafetz, a professor at Seton Hall University School of Law who has represented a number of detainees in habeas litigation. The practice, he said, allows the government to "mislead the American public on issues of profound importance to the country by skewing the perception of who really is at Guantánamo."

There have been some attempts, but with limited results, to make more of the habeas proceedings public. Nearly two years ago, as the litigation was getting under way, three media organizations -- The Associated Press, The New York Times and USA Today -- sought access to the court filings in which the government argued for holding the detainees.

The government fought the request but Judge Thomas Hogan, then the chief judge of the U.S. district court in Washington, ordered the government to release redacted, unclassified versions of its filings within 14 days.

David Schulz, a First Amendment attorney who is representing the media group, said the government is flouting Hogan's order.

"The frustrating thing about this litigation is that the judge in no uncertain terms upheld the public's constitutional right to inspect the records of the habeas proceeding and yet, nearly two years after the documents were supposed to be filed and publicly available, we are still waiting to get properly redacted filings," Schulz said.

The government is now seeking to amend Hogan's order to include six new broad categories of information that it can restrict without review by a judge unless the detainee objects. Schulz has opposed this idea. Both sides are waiting to hear from Hogan.

When the media group first fought for access, just weeks after the 2008 presidential election, the Bush administration was still in office. But Schulz said the election has had no impact on the department's position in this area.

Said Schulz: "The Obama Justice Department has fought as hard and resisted as strongly the right that the public has to see these court records."

Appeals Court Makes It Easier for Gov’t to Hold Gitmo Detainees

2011-03-29T16:51:12-05:00

by Dafna Linzer

In a decision that will likely make it more difficult for Guantanamo prisoners to win release, the U.S. Court of Appeals for the D.C. Circuit today reversed a lower court’s ruling in the pivotal case of a Yemeni detainee.

In a 14-page decision, the appeals court rejected the lower court’s ruling to release Uthman Abdul Rahim Mohammed Uthman, who has been held at Guantanamo without charge since 2002. Uthman’s case and the government’s attempts to classify the legal opinions it generated were the subject of a ProPublica story.

The appeals court standard for detention has been laid out over the last year in a number of significant cases, and as with today’s case, each time in the government’s favor. The results have been a boon for the Obama administration’s efforts to keep certain Guantanamo detainees in custody.

Today’s decision further clarifies that standard by declaring that the government doesn’t need direct evidence that a detainee fought for or was a member of al-Qaida in order to justify a detention.

Much was riding on the Uthman case because he is among several dozen prisoners the Obama administration plans to hold indefinitely without charge. For other detainees, it will likely alter the way they can present their cases for release.

In 2008, Guantanamo detainees won the right to challenge the lawfulness of their detention in court. The first challenges were largely successful for detainees, but a number of significant cases have been pushed back at the circuit court.

Uthman filed a challenge, and in February 2010, District Court Judge Henry H. Kennedy, Jr. ruled that he was being improperly held and that the United States had failed to demonstrate that he was a member of al-Qaida. As ProPublica detailed, the government censored Kennedy’s decision and quickly appealed the case to a court that was already lowering the government’s burden for proving a prisoner’s detainability.

In another case last year, known as Salahi, the appeals court rejected a lower court’s standard that the government show direct evidence the detainee was a member of al-Qaida. In that case, the court sent the detainee back to the district court to have his habeas corpus petition reheard.

In today’s opinion, written by Judge Brett Kavanaugh, the appeals court went further by reversing the habeas win outright. In doing so, the court determined that circumstantial evidence, such as a detainee being in the same location as other al-Qaida members, is enough to meet the standard to hold a prisoner without charge.

That standard, the court wrote in its decision today, “along with uncontested facts in the record, demonstrate that Uthman more likely than not was part of al Qaeda.”

Benjamin Wittes of the Brookings Institution and the national security blog Lawfare attended Uthman’s appeals hearing in February and predicted that the government would prevail. Noting the circuit court’s emerging standards, Wittes wrote that if the appeals court ordered an outright reversal of the Uthman decision “a lot of other Guantanamo detainees are going to share his pain. His case could end up lowering the substantive bar for the government to prevail in these habeas cases.”

Jonathan Hafetz, a professor at Seton Hall University School of Law who has represented a number of Guantanamo detainees including Salahi, said today’s opinion significantly favors the government in ways the Supreme Court did not intend when it granted detainees the right to challenge detentions.

“The Uthman case cements the trend in the D.C. Circuit's decisions toward a broad and malleable definition of who can be considered ‘part of’ al Qaeda, combined with a highly deferential view of the government's interpretation of the facts,” Hafetz said, “In many cases, the result is indefinite detention based on suspicion or assumptions about a detainee's behavior.”

Hafetz argued that today’s decision conflicts not only with the approach taken by the district courts but also with the Supreme Court. Hafetz said the Supreme Court “mandated a meaningful judicial process in which the government would be called to account; Uthman says judges should not require much in the way of an answer.”

Wittes embraced today’s opinion, writing on his blog that the court’s opinion reflects the complex reality of Guantanamo Bay. Today’s case asks “whether a relatively spare string of incriminating facts can get the government over the hump. The answer now is clear: It can,” Wittes wrote.

“Many fewer detainees will prevail under this understanding of the government’s evidentiary burden than would prevail under one less tolerant of a mosaic of incriminating facts,” he wrote.

Obama Counterterrorism Adviser Slams Congressional Efforts to Block Guantanamo’s Closure

2011-03-18T14:36:03-05:00

by Dafna Linzer

President Obama’s counterterrorism adviser, John O. Brennan, delivered the administration’s most forceful public call to date for the closure of the Guantanamo Bay Detention Center and the use of federal courts to try some detainees held there.

Pointing the finger at Congress, he called legislative efforts to block prisoner transfers to the United States for trial or detention an “unprecedented encroachment” on Obama’s authorities to prosecute suspects.

He said any “terrorists captured in the United States would be prosecuted exclusively through the criminal justice system,” and not by the military, as some members of Congress want.

Brennan described the closure of Guantanamo as an “essential national security objective,” and noted that its continued use was “preventing other countries from handing over terrorism suspects to the United States.”

Although Brennan was recounting stated administration policies, he did so in a far more public and passionate way than other officials have in recent months. “I believe in this,” he said later, at the conclusion of a speech at a national security symposium sponsored by The Atlantic Philanthropies and New York University’s Brennan Center for Justice.

In his remarks, Brennan alluded to recent Congressional hearings led by New York Republican Rep. Peter King that focused on Muslim radicals in the United States. Brennan called it “un-American,” to single out individual groups based on ethnicity, political affiliation or religion.

In a lengthy conversation afterward with reporters, Brennan said that if captured, Osama bin Laden would not be taken to the prison at Guantanamo Bay, categorically disputing a recent claim by CIA Director Leon Panetta.

“All the steps we are taking are to decrease the population there, not increase it,” he said. He did not say where bin Laden would be held, just that there were other detention “options available if we find people overseas. Certainly, if they are charged with crimes in the United States, they will be detained and prosecuted in our courts,” he said.

Remarking on events in the Middle East, Brennan said historic change was welcome. The administration is working to “guard against the degradation of counterterrorism cooperation,” in regions where change has been swift, he said.

In most cases, Brennan said, intelligence cooperation has been unaffected because intelligence leaders have remained in their positions. While offering no specifics, he noted that amid the unrest, “We have been able to have counterterrorism successes, whether that is bringing people back who were released, or pursing terrorist plans that were underway long before these political winds were sweeping through the area.”

Brennan said he is especially concerned, from a counterterrorism perspective, that al-Qaida suspects in prisons in places such as Libya, Egypt and elsewhere were escaping or being released from jails. He said the United States is “redoubling efforts to identify individuals and what they are up to.”

That will prove especially challenging in Libya. The United States is “not working with the Libyan government anymore,” Brennan said, but there are other “opportunities for visibility there.”

He also warned that al-Qaida, while fractured and operating largely as individual franchises, has a presence in Libya and could take advantage of “political vacuums.”

“Terrorist groups are looking at how they can take advantage of the current situation, and we need to offset these current developments,” Brennan said. Middle Eastern intelligence services also are “scurrying to find out how terrorist organizations are taking advantage of changes on the ground.”

In the speech, Brennan said that what remains of al-Qaida’s original leadership is “hunkered down in Pakistan’s tribal regions.” Elements of the group were operating in Yemen and areas of North Africa, he said, but did not mention an al-Qaida presence in Afghanistan.

Brennan, who has spent the past two years focusing in part on Washington’s relationship with Yemen, acknowledged reports that troops in Yemen had opened fire on protesters, killing as many as 40 people. He “condemned in the strongest terms” the shootings and said he intended to speak by phone today with Yemeni President Ali Abdullah Saleh.

Asked whether Libyan leader Muammar Qaddafi should face charges in connection with the 1988 bombing of a Pan Am flight over Scotland, Brennan said: “I want justice to be fully served for any type of terrorist attack that has taken place. So if there is additional evidence that would lead to the potential investigation and prosecution of other individuals, we need to make sure we can do that.”

Brennan said the United Nations Security Council resolution imposing a no-fly zone over Libya “sent a very clear signal” that Qaddafi needs to stop attacks against civilians. “The United States is not going to stand by and watch this,” he said, “nor will other countries.”