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Home Front: WoT
Suit by 5 ex-captives of CIA can proceed, appeals panel rules
2009-04-28
Should have a Lawfare subheading
The president cannot avoid trial of a lawsuit brought by five former CIA captives, who allege they were tortured, by proclaiming the entire case a protected state secret, a federal appeals panel ruled today.

Both former President George W. Bush and President Obama's Justice Department lawyers had argued before federal courts that a lawsuit brought by former Guantanamo prisoner Binyam Mohamed and four others should be dismissed in the interests of national security.

The lawyers argued that "the very subject matter" of the allegations that U.S. agents kidnapped and tortured terrorism suspects was entitled to the protections of the president's state secrets privilege. In a move that surprised many human rights groups, the Obama administration declined to revise the Bush lawyers' claims that the case needed to be dismissed to protect national security.

The three-judge panel of the U.S. 9th Circuit Court of Appeals ruled that the executive privilege claim was excessive and the case could go to trial. The lawsuit by the five alleged torture victims is against Jeppesen Dataplan, a Boeing Co. subcontractor accused of complicity in the men's mistreatment for having flown them to secret CIA interrogation sites after they were nabbed abroad by federal agents.

Previous lawsuits alleging abuse were brought against the U.S. government and dismissed by the courts presented with presidential claims of state secrets privilege.

Mohamed v. Jeppesen Dataplan now goes back to U.S. District Court in San Francisco for trial, with the U.S. government, which is backing Jeppesen, free to argue that specific documents or pieces of evidence can be protected from disclosure if they pose a genuine national security risk, but not the entire case, said the opinion.

"By excising secret evidence on an item-by-item basis, rather than foreclosing litigation altogether at the outset, the evidentiary privilege recognizes that the executive's national security prerogatives are not the only weighty constitutional values at stake," said the unanimous opinion written by Circuit Judge Michael Daly Hawkins, an appointee of President Clinton. ...

Binyam Mohamed
The items Mohamed admitted include the following:

1. The detainee is an Ethiopian who lived in the United States from 1992 to 1994, and in London, United Kingdom, until he departed for Pakistan in 2001.

2. The detainee arrived in Islamabad, Pakistan, in June 2001, and traveled to the al Farouq training camp in Afghanistan, to receive paramilitary training.

3. At the al Farouq camp, the detainee received 40 days of training in light arms handling, explosives, and principles of topography.

4. The detainee was taught to falsify documents, and received instruction from a senior al Qaeda operative on how to encode telephone numbers before passing them to another individual.

At a minimum, therefore, we know that Mohamed has admitted being an al Qaeda-trained operative.

Mohamed claims that he was not going to use his skills against America. Mohamed told his personal representative that "he went for training to fight in Chechnya, which was not illegal." In 2005, Mohamed's lawyer echoed this explanation in an interview with CNN. "He wanted to see the Taliban with his own eyes," Mohamed's lawyer claimed. "I am not saying he never went to any Islamic camp," the lawyer conceded, but he "didn't go to any camp to blow up Americans."

There are obvious problems with this quasi-denial.

The al Farouq training camp was responsible for training numerous al Qaeda operatives, including some of the September 11 hijackers. Al Qaeda used the al Farouq camp to identify especially promising recruits who could take on sensitive missions. According to the 9/11 Commission Report, this is what happened with members of al Qaeda's infamous Hamburg cell. Some of the future 9/11 suicide pilots also first expressed an interest in fighting in Chechnya, but ended up being assigned a mission inside the United States.

This is what the US government, or at least the parts of it that investigated Mohamed's al Qaeda ties, believes happened to Mohamed. In the unclassified files produced at Guantánamo, as well as an indictment issued by a military commission, the Department of Defense and other US agencies have outlined what they think happened during Binyam Mohamed's time in Afghanistan and then Pakistan.

According to the US government's allegations, Osama bin Laden visited the al Farouq camp "several times" after Mohamed arrived there in the summer of 2001. The terror master "lectured Binyam Mohamed and other trainees about the importance of conducting operations against the United States." Bin Laden explained that "something big is going to happen in the future" and the new recruits should get ready for an impending event.

From al Farouq, Mohamed allegedly received additional training at a "city warfare course" in Kabul and then moved to the front lines in Bagram "to experience fighting between the Taliban and the Northern Alliance." He then returned to Kabul, where the government claims he attended an explosives training camp alongside Richard Reid, the infamous shoe bomber.

Mohamed was then reportedly introduced to top al Qaeda operative Abu Zubaydah. By early 2002, the two were traveling between al Qaeda safehouses. The US government alleges that Mohamed then met Jose Padilla and two other plotters, both of whom are currently detained at Guantánamo, at a madrassa. Zubaydah and another top al Qaeda lieutenant, Abdul Hadi al Iraqi, allegedly directed the four of them "to receive training on building remote-controlled detonation devices for explosives."

At some point, Padilla and Mohamed traveled to a guesthouse in Lahore, Pakistan, where they "reviewed instructions on a computer ... on how to make an improvised 'dirty bomb.'" To the extent that the allegations against Mohamed have gotten any real press, it is this one that has garnered the attention. Media accounts have often highlighted the fact that Padilla and Mohamed were once thought to be plotting a "dirty bomb" attack, but that the allegation was dropped, making it seem as if they were not really planning a strike on American soil.

Indeed, all of the charges against Mohamed were dropped last year at Guantánamo. But this does not mean that he is innocent. As some press accounts have noted, the charges were most likely dropped for procedural reasons and because of the controversy surrounding his detention. According to US government files, Padilla and Mohamed were considering a variety of attack scenarios.

Zubaydah, Padilla, and Mohamed allegedly discussed the feasibility of the "dirty bomb plot." But Zubaydah moved on to the possibility of "blowing up gas tankers and spraying people with cyanide in nightclubs." Zubaydah, according to the government, stressed that the purpose of these attacks would be to help "free the prisoners in Cuba." That is, Zubaydah wanted to use terrorist attacks to force the US government to free the detainees at Guantánamo.

According to the summary-of-evidence memo prepared for Mohamed's combatant status review tribunal at Guantánamo, Mohamed was an active participant in the plotting. He proposed "the idea of attacking subway trains in the United States." But al Qaeda's military chief, Saif al Adel, and the purported 9/11 mastermind, Khalid Sheikh Mohammed (KSM), had a different idea. Al Adel and KSM allegedly told Binyam that he and Padilla would target "high-rise apartment buildings that utilized natural gas for its heat and also targeting gas stations." Padilla and Mohamed were supposed to rent an apartment and use the building's natural gas "to detonate an explosion that would collapse all of the floors above."

It may have been this "apartment building" plot that Mohamed and Padilla were en route to the United States to execute when they were apprehended. In early April 2002, KSM allegedly gave Mohamed $6,000 and Padilla $10,000 to fly to the United States. They were both detained at the airport in Karachi on April 4. Mohamed was arrested with a forged passport, but released. KSM arranged for Mohamed to travel on a different forged passport, but he was arrested once again on April 10. Padilla was released and made it all the way to Chicago before being arrested once again.

The gravity of the charges against Mohamed is rarely reported in the media. The Bush administration and US intelligence officials believed he was part of al Qaeda's attempted second wave of attacks on US soil.
Posted by:ed

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