Detention Provision Is Blocked

June 7, 2012

The New York Times on June 6, 2012 released the following:

“By CHARLIE SAVAGE

WASHINGTON — The government may not rely on a disputed law enacted last year to hold people in indefinite military detention on suspicion that they “substantially supported” Al Qaeda or its allies — at least if they had no connection to the Sept. 11 terrorist attacks, a federal judge said on Wednesday.

In an eight-page memorandum opinion and order, Judge Katherine B. Forrest of the Southern District of New York clarified a preliminary injunction she issued on May 16 in a lawsuit brought by journalists and activists who challenged the statute — a provision of the National Defense Authorization Act of 2011 — and expressed fear that they could be detained.

The Obama administration had asked Judge Forrest to reconsider her ruling, saying that the plaintiffs lacked legal standing to challenge the law and that it was “extraordinary” for her to have restrained future military operations that might be ordered by the commander in chief during wartime.

As part of that request, the government said in a footnote that it was interpreting her injunction narrowly as applying only to the handful of people specifically named as plaintiffs in the lawsuit, including Chris Hedges, a journalist who interacts with terrorists as part of his reporting work, and several prominent supporters of WikiLeaks.

But on Wednesday, Judge Forrest said that her order still stood — and that, contrary to the government’s narrow interpretation of it, her injunction applied broadly and not just to the named plaintiffs.

“Put more bluntly, the May 16 order enjoined enforcement of Section 1021(b)(2) against anyone until further action by this, or a higher, court — or by Congress,” she wrote. “This order should eliminate any doubt as to the May 16 order’s scope.”

Ellen Davis, a spokeswoman for the United States attorney’s office in the Southern District of New York, declined to comment on the new order.

In section 1021, Congress laid out its interpretation of the extent of the military’s authority to hold people without trial, as detailed in its approval — a decade earlier — of military force shortly after the Sept. 11 attacks.

One provision of the statute, which Judge Forrest’s order did not block, said that authorization covered the detention of the perpetrators of the Sept. 11 attacks and those who assisted in them.

But another provision, which she did block, said it also covered people who were part of or substantially supported Al Qaeda, the Taliban or associated forces engaged in hostilities against the United States or its allies.

Enactment of the statute was controversial, in part, because it did not lay out what conduct could lead to someone’s being detained, and because it was silent about whether it extended to American citizens and others arrested on United States soil.”

————————————————————–

Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

Federal Crimes – Detention Hearing

Federal Mail Fraud Crimes

Federal Crimes – Appeal

————————————————————–

To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


C.I.A. Demands Cuts in Book About 9/11 and Terror Fight

August 26, 2011

The New York Times on August 26, 2011 released the following in print:

“WASHINGTON — In what amounts to a fight over who gets to write the history of the Sept. 11 attacks and their aftermath, the Central Intelligence Agency is demanding extensive cuts from the memoir of a former F.B.I. agent who spent years near the center of the battle against Al Qaeda.

The agent, Ali H. Soufan, argues in the book that the C.I.A. missed a chance to derail the 2001 plot by withholding from the F.B.I. information about two future 9/11 hijackers living in San Diego, according to several people who have read the manuscript. And he gives a detailed, firsthand account of the C.I.A.’s move toward brutal treatment in its interrogations, saying the harsh methods used on the agency’s first important captive, Abu Zubaydah, were unnecessary and counterproductive.

Neither critique of the C.I.A. is new. In fact, some of the information that the agency argues is classified, according to two people who have seen the correspondence between the F.B.I. and C.I.A., has previously been disclosed in open Congressional hearings, the report of the national commission on 9/11 and even the 2007 memoir of George J. Tenet, the former C.I.A. director.

Mr. Soufan, an Arabic-speaking counterterrorism agent who played a central role in most major terrorism investigations between 1997 and 2005, has told colleagues he believes the cuts are intended not to protect national security but to prevent him from recounting episodes that in his view reflect badly on the C.I.A.

Some of the scores of cuts demanded by the C.I.A. from Mr. Soufan’s book, “The Black Banners: The Inside Story of 9/11 and the War Against Al Qaeda,” seem hard to explain on security grounds.

Among them, according to the people who have seen the correspondence, is a phrase from Mr. Soufan’s 2009 testimony at a Senate hearing, freely available both as video and transcript on the Web. Also chopped are references to the word “station” to describe the C.I.A.’s overseas offices, common parlance for decades.

The agency removed the pronouns “I” and “me” from a chapter in which Mr. Soufan describes his widely reported role in the interrogation of Abu Zubaydah, an important terrorist facilitator and training camp boss. And agency officials took out references to the fact that a passport photo of one of the 9/11 hijackers who later lived in San Diego, Khalid al-Midhar, had been sent to the C.I.A. in January 2000 — an episode described both in the 9/11 commission report and Mr. Tenet’s book.

In a letter sent Aug. 19 to the F.B.I.’s general counsel, Valerie E. Caproni, a lawyer for Mr. Soufan, David N. Kelley, wrote that “credible sources have told Mr. Soufan that the agency has made a decision that this book should not be published because it will prove embarrassing to the agency.”

In a statement, Mr. Soufan called the C.I.A’s redactions to his book “ridiculous” but said he thought he would prevail in getting them restored for a later edition.

He said he believed that counterterrorism officers have an obligation to face squarely “where we made mistakes and let the American people down.” He added: “It saddens me that some are refusing to address past mistakes.”

A spokeswoman for the C.I.A., Jennifer Youngblood, said, “The suggestion that the Central Intelligence Agency has requested redactions on this publication because it doesn’t like the content is ridiculous. The C.I.A.’s pre-publication review process looks solely at the issue of whether information is classified.”

She noted that under the law, “Just because something is in the public domain doesn’t mean it’s been officially released or declassified by the U.S. government.”

A spokesman for the F.B.I., Michael P. Kortan, declined to comment.

The book, written with the assistance of Daniel Freedman, a colleague at Mr. Soufan’s New York security company, is scheduled to go on sale Sept. 12. Facing a deadline this week, the publisher, W. W. Norton and Company, decided to proceed with a first printing incorporating all the C.I.A.’s cuts.

If Mr. Soufan ultimately prevails in negotiations or a legal fight to get the excised material restored, Norton will print the unredacted version, said Drake McFeely, Norton’s president. “The C.I.A.’s redactions seem outrageous to me,” Mr. McFeely said. But he noted that they are concentrated in certain chapters and said “the book’s argument comes across clearly despite them.”

The regular appearance of memoirs by Bush administration officials has continued a debate over the facts surrounding the failure to prevent 9/11 and the tactics against terrorism that followed. In former Vice President Dick Cheney’s memoir, set for publication next week, he writes of the harsh interrogations that “the techniques worked.”

A book scheduled for publication next May by José A. Rodriguez Jr., a former senior C.I.A. official, is expected to give a far more laudatory account of the agency’s harsh interrogations than that of Mr. Soufan, as is evident from its tentative title: “Hard Measures: How Aggressive C.I.A. Actions After 9/11 Saved American Lives.”

Government employees who hold security clearances are required to have their books vetted for classified information before publication. But because decisions on what should be classified can be highly subjective, the prepublication review process often becomes a battle. Several former spies have gone to court to fight redactions to their books, and the Defense Department spent nearly $50,000 last year to buy and destroy the entire first printing of an intelligence officer’s book, which it said contained secrets.

The C.I.A. interrogation program sharply divided the C.I.A. and the F.B.I., whose director, Robert S. Mueller III, ordered agents to stop participating in the program after Mr. Soufan and other agents objected to the use of physical coercion. But some C.I.A. officers, too, opposed the brutal methods, including waterboarding, and it was their complaint to the C.I.A.’s inspector general that eventually led to the suspension of the program.

“The Black Banners” traces the origins and growth of Al Qaeda and describes the role of Mr. Soufan, 40, a Lebanese-American, in the investigations of the East African embassy bombings of 1998, the attack on the American destroyer Cole in 2000, 9/11 and the continuing campaign against terrorism.

Starting in May, F.B.I. officials reviewed Mr. Soufan’s 600-page manuscript, asking the author for evidence that dozens of names and facts were not classified. Mr. Soufan and Mr. Freedman agreed to change wording or substitute aliases for some names, and on July 12 the bureau told Mr. Soufan its review was complete.

In the meantime, however, the bureau had given the book to the C.I.A. Its reviewers responded this month with 78-page and 103-page faxes listing their cuts.”

To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN List Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

Bookmark and Share