Undisclosed Locations—Update

This morning we mentioned that Syed Haris Ahmed has been indicted and charged with providing material support for terrorism, and that he was being kept at an undisclosed location. This afternoon, some details have been released, and they do not necessarily match with what was in the US Attorney’s Press Release. According to “an affidavit made public” today, Mr. Ahmed and another man “traveled to Canada to meet with Islamic extremists to discuss ‘strategic locations in the United States suitable for a terrorist strike.’”^[1] If this is true, either US Attorney’s Nahmias’s statement that “at no time [was the government] aware of immediate danger to the Atlanta area or the United States” is incorrect, or the affidavit is overstating the seriousness of the discussions. We suspect it is the latter because an FBI spokesman in Washington told the AP that “There is no imminent threat.”^[2]

The other man, Ehsanul Islam Sadequee, is accused of making materially false statements, and he was arrested in Bangladesh and was en route to New York City to be arraigned. Since there is no extradition treaty between the United States and Bangladesh, and there was no information made public about any proceedings done under any of the numerous multilateral conventions which might have allowed extradition, Mr. Sadequee was either deported from Bangladesh, or was extrajudicially removed, as we have seen in the past with individuals from Mexico and Jordan.

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[1] Giovanna Dell’Orto, FBI Says 2 in Ga. Plotted Terrorism, Associated Press (via Minneapolis Star-Tribune), Apr. 21, 2006.
[2] Id.

Undisclosed Locations—Syed Haris Ahmed

Syed Haris Ahmed, a 21-year-old Georgia Tech student who is a naturalized citizen, has the dubious distinction of being one of the few individuals besides Vice President Cheney whose whereabouts are characterized as “undisclosed.”^[1] According to the government, Mr. Ahmed “has been detained in facilities regularly used by the United States Marshals Service to detain pre-trial federal defendants. From the day after his arrest, his location has been known to his lawyer and his family, who have been able to visit with him. The location is not being made public because of the nature of the case.”^[2] This is interesting. Over the past couple of years, only a handful of individuals have been held in “undisclosed locations,” usually in reference to a person accused of terrorism abroad.^[3] Occasionally, however, someone charged with far less sensitive crimes might be held at an undisclosed location. For example, the BTK serial killer—Dennis L. Rader—was, at the time of his arrest, “taken into custody without a fuss … and was … held at an ‘undisclosed location.’”^[4]

Perhaps, then, Mr. Ahmed’s detention at an undisclosed location might not suggest a disturbing pattern of secrecy and maybe it doesn’t signal yet another erosion of American’s civil liberties. On the other hand, one should not be willing to accept the notion that the government can simply remove a person from public view, with only a handful of people allowed to know details of the case. This is especially true when the government’s rationale is logically inconsistent.

According to US Attorney David E. Nahmias, Mr. Ahmed’s case is “the first international terrorism charge filed in Georgia,” and he is accused of providing material support for terrorists under 18 U.S.C. § 2339A(a), apparently with the plan that others would commit acts of terrorism transcending national boundaries under 18 U.S.C. § 2332b, and conspiring to kill, maim, or injure persons or damage property in a foreign country under 18 U.S.C. § 956.^[5] No other details have been offered.

The term “material support,” as defined in the statute, is fairly broad and includes providing property, currency, lodging, training, expert advice, safehouses, false identification documents, communications equipment, weapons, lethal substances, personnel, and transportation; it does not include providing medicine or religious materials.^[6]

The charges against, and subsequent detention of Mr. Ahmed, are very interesting because US Attorney Nahmias went through great lengths to assure people “that at no time [was the government] aware of immediate danger to the Atlanta area or the United States,”^[7] which strongly suggests that the alleged acts were to be carried out in other countries. In that respect, they are similar to the charges pending against Jose Padilla, who was detained as an enemy combatant in a military brig for years before finally being charged with crimes that bear no relation to the alleged reasons for detaining him in the brig. Mr. Padilla is not currently being held at an undisclosed location. They are also similar to the charges pending against Wesam al Delaema, whose extradition from the Netherlands was almost stopped until the US government assured the Netherlands that Mr. al Delaema would not be sent to Guantanamo. The detention of Mr. Ahmed at an undisclosed location may cause problems for extradition proceedings in other countries if foreign judges determine that a number of layers of assurances are required before they hand over suspects, on the grounds that there may be fears that the individual will be taken to an undisclosed location.

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[1] Dawsonville Man Indicted For Alleged Ties to Terrorism, Associated Press (via AccessNorthGa.com), Apr. 21, 2006.
[2] US Attorney’s Office, Atlanta Man Indicted for Material Support of Terrorism, US Newswire (via Yahoo!), Apr. 20, 2006.
[3] See, e.g., Paul Haven, Pakistan Arrests al-Qaida Suspect Wanted in 1998 Embassy Bombings, Associated Press, Jul. 30, 2004 (Ahmed Khalfan Ghailani, arrested in Pakistan, was held at an undisclosed location in Pakistan); Ahmed Al-Haj, Two USS Cole Defendants Sentenced to Die, Pittsburgh Tribune Review, Sep. 30, 2004 (Yemen court orders execution of Abd al-Rahim al-Nashiri, who was “one of a number of senior al-Qaida figures who have been held in U.S. custody at undisclosed locations for interrogations since their captures.”); Susan Milligan, et al., Hussein Photographs Spark Military Inquiry, Boston Globe, May 21, 2005 (Saddam Hussein currently being held at an undisclosed location).
[4] Monica Davey, After Years of Taunts and Clues, Arrest is Made in Kansas, N.Y. Times, Feb. 27, 2005.
[5] USAO, supra note 2.
[6] 18 U.S.C. § 2339A(b)(1).
[7] USAO, supra note 2.

Guantanamo Bay Detainees—List Released

Responding to a Freedom of Information Act [hereinafter FOIA] lawsuit filed by the Associated Press, the Pentagon has released the names of 558 detainees who have ever been held in Guantanamo Bay.^[1] The list, composed of people from 41 countries, “is the first official roster of Guantanamo detainees who passed through the Combatant Status Review Tribunal process in 2004 and 2005” which was intended to “determine whether they should be deemed ‘enemy combatants.’”^[2]

There are some familiar names on the list, such as the Australian man, David Hicks, who is “a Muslim from Australia charged with fighting U.S. and coalition forces in Afghanistan.”^[3] Also included in the list are “top former Taliban officials such as the ousted regime’s former Defense Ministry chief or staff Mullah Mohammed Fazil; Taliban intelligence officials Abdul Haq Wasiq and Gholam Ruhani, who are believed to be in custody still; and the Taliban's former ambassador to Pakistan, Abdul Salam Zaeef, who was released in 2005.”^[4] In all, however, most of the people on the list are “small fry, figures of little value in the international ‘war on terror.’”^[5] Not one “single senior figure from Al-Qaeda [or] other Islamic extremist groups” is represented on the list.^[6] The former head of the CIA unit tasked on finding Osama bin Laden, Michael Scheuer, told the National Journal that the Guantanamo detainees appeared to be mere foot-soldiers, and that “They are going to know absolutely nothing about terrorism. … We absolutely got the wrong guys.”^[7]

The list is not a full accounting of all who have been held at Guantanamo, however. There have allegedly been more than 750 prisoners who have ever passed through Guantanamo, which means that nearly 200 individuals are not accounted for, and it is estimated that 490 individuals are currently being held there.^[8] 41 countries are represented on the list, with 132 from Saudi Arabia, 125 from Afghanistan, and 107 from Yemen.^[9]

The publication of the list has been met with praise by an Afghan commission “working to free Afghan detainees,” and with scorn by the Pakistani Interior Ministry.^[10] According to Sayeed Sharif Youssefi, a senior official at Afghanistan’s peace and reconciliation commission, “the list sheds light on how many Afghans are in the U.S. detention facility … and who they are.”^[11] The commission is planning on sending a delegation to Guantanamo “to check on those Afghan detainees there.”^[12] Pakistan, however, is rather upset by the list. “According to the latest information provided to us by America,” said a Pakistani Interior Ministry official, “22 Pakistanis are still detained there.”^[13] It was understood that there were only seven Pakistanis in Guantanamo, and the official says that “it is a fact that they have been concealing information from us about out people detained at Guantanamo Bay.”^[14]

In other Guantanamo-related news, nearly 100 prisoners are planned for release “once their home countries or a third party agree to take them in.”^[15] Of the estimated 250 prisoners who have been released from the base, only 15 have “returned” to the battlefield.^[16] And finally, a Coast Guard Academy professor is saying that the Guantanamo system is broken, and “the situation has become so untenable the American military risks losing credibility in the international community.”^[17] Commander Glenn Sulmasy is promoting the creation of “national security courts at domestic military bases, overseen by judges with expertise in national security law and armed conflict.”^[18] While the trials would be secret, the individuals would have access to military defense attorneys or civilian attorneys with security clearances, and watchdog groups would be allowed to supervise the process to ensure fairness.^[19]

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[1] Ben Fox, Guantanamo List Contains Names of 558, Associated Press (via Fort Worth Star-Telegram), Apr. 20, 2006.
[2] Id.
[3] Id.
[4] Afghans Praise, Pakistanis Slam Guantanamo List, Associated Press (via CNN.com), Apr. 20, 2006.
[5] Most Guantanamo Detainees Are Small Fry, Experts Say, Turkish Press, Apr. 20, 2006.
[6] Id.
[7] Id.
[8] Fox, supra note 1.
[9] Id.
[10] AP, supra note 4.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] US Ready to Release 100 Guantanamo Detainees: Diplomat, Agence France-Presse (via Yahoo!), Apr. 20, 2006.
[16] Id.
[17] Professor Wants National Security Courts to Replace Guantanamo, Associated Press (via Norwalk Advocate), Apr. 20, 2006.
[18] Id.
[19] Id.

Universal Jurisdiction for Terrorism

One of the great barriers to bringing acts of terrorism into the classification of crimes for which universal jurisdiction applies is that the international community cannot come up with a clear definition of what terrorism is.^[1] As the saying goes one man’s terrorist is another man’s freedom fighter. This was evident a couple of months ago when it was announced that a “panel of Italian judges … upheld the acquittals of three North Africans on international terror charges, bas[ing] its ruling on the fact that recruiting suicide bombers to fight against U.S. soldiers is not terrorism.”^[2] According to the Italian judges, “recruiting suicide bombers could not be considered terrorism because during an armed conflict the only acts that count as terrorism are ‘acts exclusively directed against a civilian population’”;^[3] because the acts were directed at US soldiers, the individuals were more appropriately termed guerrillas.

Adding to the complication is that while the rest of the world sees terrorism as primarily a law enforcement issue, statements by certain members of the Bush Administration have complicated efforts to develop an international definition of terrorism which would allow for universal jurisdiction. Vice President Cheney, for example, said on September 7, 2004 that voting for Senator Kerry would, in a charitable interpretation, allow the country to “fall back into the pre-9/11 mind set … that in fact these terrorist attacks are just criminal acts, and that we're not really at war.”^[4] Of course, Vice President Cheney must be well aware of Chapter 113B of Title 18 of the US Code, titled “Terrorism.” But the point remains that US insistence on using terminology such as the “Global War on Terrorism”^[5] makes it more difficult to come up with a consensus definition that would allow countries to legally exercise universal jurisdiction over acts of terrorism.

Defining what constitutes terrorism is also an extremely difficult proposition as well. For example, in a draft of Turkey’s new Counter-Terrorism Act, theft, deliberate arson, trafficking in narcotics, and flag-burning are acts which are included in the definition of terrorism.^[6] Furthermore, punishment will be increased under the proposed legislation for such activities as carrying pictures and banners supporting any terrorist organization, or shouting slogans, disguising identities, wearing emblems and symbols of such organizations, spreading “propaganda on behalf of terror networks,” and organizing activities to recruit members to the organization.^[7] If any of these activities are committed “by or at political parties, associations, foundations, trade unions, educational institutions and student hostels,” the punishment can be doubled.^[8] Furthermore, individuals taken into custody on suspicion of terror crimes are entitled to only one lawyer, and they have only 24 hours to consult with that lawyer.^[9] The lawyer’s access to the suspect’s file can be curtailed.^[10]

Compare the definitions of what constitutes an act of terrorism in Turkey with the definition of what constitutes an act of terrorism in the United States. Under 18 U.S.C. § 2331(1) international terrorism is defined as activities that

• involve violent acts or acts dangerous to human life that are criminal violations;
• appear to be intended
  • to intimidate or coerce a civilian population;
  • to influence the policy of a government by intimidation or coercion; or
  • to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
• occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in the way they are carried out

Domestic terrorism is essentially the same act but committed within the territorial jurisdiction of the United States.^[11]

Notice how the United States requires violence before an act can be classified terrorism, and Turkey’s proposed legislation may be too broad for its own good, causing not only problems for universal jurisdiction advocates, but also for its own inclusion into the European Union. For example, the United Kingdom, which is facing its own controversies about the overbreadth of its own anti-terrorism laws,^[12] defines terrorism as the use or threat of action which involves violence or serious damage to property, which is designed to influence the government or a civilian population, which is made to advance a religious or political cause.^[13]

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[1] See, e.g., Restatement (Third) of Foreign Relations Law of the United States § 404 (1987) [hereinafter Restatement] (universal jurisdiction allows a state to ‘define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern,” such as piracy, the slave trade, attacks on or hijacking of aircraft, genocide, war crimes and “perhaps certain acts of terrorism.”) (emphasis added).
[2] See Recruiting Suicide Bombers Not Terrorism, Associated Press (via MSNBC.com), Feb. 16, 2006.
[3] Id.
[4] See Richard Cheney, Vice President and Mrs. Cheney’s Remarks and Q&A at a Town Hall Meeting, WhiteHouse.gov, Sep. 7, 2004.
[5] See, e.g., Donald Rumsfeld, Memorandum from Donald Rumsfeld to Dick Myers et al., "Re: Global War on Terrorism," Oct. 16, 2003.
[6] See Murat Aydin, Scope of Terror Expanded in CTA, Zaman Daily Newspaper, Apr. 19, 2006.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] 18 U.S.C. § 2331(5).
[12] See Richard Ford, Anti-Terror Laws Are an Affront to Justice, Says High Court, Times (London), Apr. 13, 2006 (Britain’s High Court declared that the UK’s anti-terror laws are an “affront to justice,” and that holding foreign terror suspects indefinitely without trial was “conspicuously unfair.”).
[13] See Terrorism Act 2000 (c.11) s.1, amended by Terrorism Act 2006 (c.11).

Lodi Terrorism Trials—Jury Deliberation

For three days, two federal juries have been deliberating in one terrorism case in Sacramento, California.^[1] At issue is whether a Lodi, California father—Umer Hayat—and his son—Hamid Hayat—should be convicted on a range of terrorism offenses.^[2] Umer is charged with “lying to the FBI to conceal his son’s terrorist training and his own firsthand knowledge of Pakistani training camps,”^[3] while Hamid is “charged with providing material support to terrorism by undergoing training in Pakistan”^[4] and then returning to Lodi in May 2005 in order to commit acts of violence against the United States, as well as also making false statements.^[5]

The dual juries are “watching videotaped interrogations of Hamid and Umer … by FBI agents in June, just before the pair were arrested and jailed”; those jurors considering Hamid’s case have approximately one hour of video remaining to watch, while the jurors deliberating on Umer’s case have nearly one-and-a-half hours left.^[6] During Hamid’s interrogation, he apparently said “that he went to a camp in Pakistan and received firearms training” and that he “lied when he initially denied to agents that he had undergone training.”^[7] During Umer’s interrogation, he apparently told interrogators “that he lied when he initially denied to agents that his son had attended a training camp” and that he “visited four such Pakistani camps strictly as an observer in 2004, including one where his son had trained.”^[8]

The decision to empanel dual juries was made in mid-January “in order to remedy potential issues under Bruton v. United States^[9].”^[10] Bruton “presents the question … whether the conviction of a defendant at a joint trial should be set aside although the jury was instructed that a codefendant’s confession inculpating the defendant had to be disregarded in determining his guilt or innocence.”^[11] The defendant in Bruton challenged his conviction in a trial where he and a co-defendant were tried together. During the trial, the government introduced into evidence the oral confession of the co-defendant as well as an admission that he had an accomplice which he would not name.^[12] The co-defendant’s conviction was set aside on the ground that his oral confessions should not have been received in evidence against him.^[13] The defendant’s confession was upheld because the jury had been instructed that the co-defendant’s confession was competent evidence against the co-defendant, but it was inadmissible hearsay against the defendant and had to be disregarded in determining his guilt or innocence.^[14]

The US Supreme Court, however, held that there was a “substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining [defendant’s] guilt.”^[15] Therefore, the conviction against the defendant was reversed.^[16]

In the Hayats’ case, the dual juries are intended to combat the problem of having both defendants appear on videotape apparently confessing to lying to investigators. District Judge Burrell noted that “the government argues and Defendants indicate that empanelling two juries will avoid Bruton issues,” so he ordered 12 jurors and four alternates to be empanelled for each Defendant “unless space limitations in the courtroom indicate fewer alternate jurors should be empanelled.”^[17]

A final note: Because the alleged false statements involve international or domestic terrorism, the defendants potentially face up to 8 years in prison, rather than the 5 years that is available under non-terrorism-related false statements offenses.^[18]

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[1] Denny Walsh, Juries Continue Deliberations in Separate Lodi Terror Cases, Sacramento Bee, Apr. 18, 2006.
[2] Id.
[3] See 18 U.S.C. § 1001.
[4] See 18 U.S.C. § 2339A.
[5] Walsh, supra note 1.
[6] Id.
[7] Id.
[8] Id.
[9] 391 U.S. 123 (1968).
[10] United States v. Hayat, No. 2:05-cr-0240, Order (Docket Entry 150), (E.D. Cal. 2006) (available through PACER).
[11] Bruton, supra note 9.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Hayat, supra note 10.
[18] See 18 U.S.C. § 1001(a).

McNabb in the News (4-17-06)

Senior Principal Douglas McNabb has been quoted in a Las Vegas Review-Journal article about Clark County Commissioner Erin Kenny, who is facing less than four years in prison for taking bribes.

Douglas McNabb, a (n)... attorney who specializes in white-collar federal cases, explained that targets of federal criminal investigations such as Kenny sometimes offer to "proffer" information about other illegal acts to the government when they are considering cooperating with authorities against other targets. In exchange, the government agrees not to prosecute them for giving up this information.

"It's basically, 'Anything I tell you that you don't know about, you can't use directly against me,'" McNabb said. "But they can use it to go after others."

Although Kenny has not been charged for accepting an illegal payment from Davidson, the developer was indicted last year on charges related to bribing Kenny.

"If she disclosed that information to the government under a proffer letter, then they don't charge her and it can't be used at sentencing to increase her sentence," McNabb said. "They could've also worked out a deal not to go after her assets."

…

McNabb, the ... legal expert, said it is more likely Kenny will receive a fine between $100,000 and $150,000.

"This lady got in fairly early in the process and has provided a substantial amount of information and assistance to the government," McNabb said.

…

But it does not appear government tax collectors intend to pursue civil action against Kenny. The statute of limitations for IRS auditors to go after Kenny is three years.

McNabb said the clock started ticking under that statute of limitations when Kenny signed her plea agreement in May 2003, meaning only weeks remain for authorities to pursue a civil case.^[1]

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[1] Mike Kalil, Political Corruption Trial: Plea Deal’s Message Criticized, Las Vegas Review-Journal, Apr. 16, 2006.

“White Muslims”

William J. Kole of the Associated Press has written a fascinating article on the growth of non-Arab terrorist recruitment in the Balkans.^[1] That article, however, is not available through the AP’s Accessa service, and only portions of it remain on a handful of Indian news sites;^[2] it seems to have been altered, edited, and replaced with a different article.^[3]

{Update: The article has now been made available.}

In any event, the thrust of Mr. Kole’s article is that “[t]errorists have been working to recruit non-Arab sympathizers—so-called “white Muslims” with Western features who theoretically could more easily blend into European cities and execute attacks.”^[4] This claim comes from a “252-page confidential report jointly compiled by Croatian and U.S. intelligence on the activities of Islamic group in Bosnia.”^[5]

In many respects, the recruitment of western-featured individuals is not new. Californian John Walker Lindh, the “American Taliban,” was seized while fighting against US forces in Afghanistan.^[6] Richard Reid, the “shoe bomber,” has western features having been born to an English mother and a Jamaican father.^[7] And Jose Padilla, the “apartment bomber”^[8] has Hispanic features.^[9] Clearly, then, it is not earth-shattering news that non-Arabs are being recruited by terrorist organizations.^[10]

Nonetheless, the report’s findings are important to understand. According to Dragan Lukac, the deputy director of Bosnia’s equivalent of the FBI, “Bosnia has become a breeding ground for terrorists, including some on international wanted lists.”^[11] This may be attributed in part to disaffection among Bosnian youth, encouraged by tacit acceptance of “spout[ing] extremist sentiment in public.”^[12] While the “vast majority” of Bosnia’s Muslim population rejects extremism, “young, restless men frustrated with 40 percent joblessness and angered by real or perceived insults to Islam can be open to hard-line dogma.”^[13]

Furthermore, Bosnia has become something of an extremist “beachhead” because “arms and explosives are easily obtained in what [Mr.] Lukac calls ‘a kind of El Dorado’ for criminals”; the former Yugoslavia has turned into a sort of “meeting point.”^[14]

Despite the report’s findings, Bosnian and international officials “stress[] that the Balkan country should not be considered a hotbed of terrorist activity,” and that post-9/11 security measures have largely “created a situation in which [Bosnia] can say these kinds of things were put under control.”^[15]

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[1] William J. Kole, White Warriors Terrorists Recruiting "White Muslims", Associated Press, Apr. 17, 2006. (not available online)
[2] See ”Terrorists May be Recruiting White Muslims”, Associated Press (via Express India), Apr. 17, 2006; See also id. (via Financial Express) and id. (via Indian Monitor).
[3] See William J. Kole, Intelligence Report: Islamic Extremists Have Been Transiting Balkans for Years, AP, Apr. 17, 2006. (subscription only).
[4] Kole, supra note 1.
[5] Id.
[6] See John Walker Lindh: Profile, CNN.com, Dec. 2001.
[7] See Who is Richard Reid? BBC News, Dec. 28, 2001.
[8] Mr. Padilla may be better-known as the “dirty bomber,” but as we have pointed out a number of times, that is an inaccurate way to discuss him.
[9] See Profile: Jose Padilla, BBC News, Nov. 22, 2005.
[10] From a purely technical point of view, terrorist organizations in the Pacific Islands--such as the Moro Islamic Liberation Front, Abu Sayyaf, Laskar Jihad, Free Aceh Movement, and Kumpulan Mujahideen Malaysia, comprised of Pacific Islanders—may be Muslim, but they are not Arab. See, e.g., Simon Elegant, Eye of the Storm, Time (Asia), no date of publication provided. Furthermore, Islamic terrorist organizations in Iran, Afghanistan, Pakistan, India, and elsewhere in Southern Asia are not properly considered “Arab,” either.
[11] Kole, supra note 1.
[12] Id.
[13] Id.
[14] Id.
[15] Kole, supra note 3.