'Enemy combatants' could go free
Lawyers cite lack of US evidence against Taliban, terror suspects.
A court in Hamburg, Germany heard new evidence Wednesday in the retrial of the only person to have been successfully prosecuted for his role in the 9/11 terrorist attacks, Mounir el-Motassadeq. The evidence indicated
he played no role in the planning for those attacks.
The New York Times reports that the statements in the evidence were made by two capured Al Qaeda leaders during interrogations, and were given to the German court by the US Justice department. The department has said it would now cooperate in a "limited way" with the German prosecutors.
Mr. Motassadeq, a Moroccan engineering student, had been convicted for his involvement in planning 9/11, but that conviction was overthrown in March 2004 by a German appeals court. The court said US officials had withheld evidence key to Motassadeq defense.
Agence France-Presse reports that during his first trial in February of 2003 prosecutors had depicted him as "
a fanatical accomplice able and willing to provide logistical help to assure the conspiracy's success." But the new evidence, mentioned in the
Times article, seems to undercut this claim.
The key assertion [reports the
Times] in the summaries was made by Ramzi bin al-Shibh, a Qaeda leader in American custody, who said Mr. Motassadeq "was not privy" to the plans of Mohamed Atta or the other hijackers. Mr. bin al-Shibh, who is believed to have played a central role in the plot, said Mr. Motassadeq was a regular visitor to Mr. Atta's apartment in Hamburg, where he and others "studied jihad" and "engaged in vitriolic anti-American discussions." But he was not part of the cell that planned the attacks. That group, he said, consisted only of himself, Mr. Atta and two other men who hijacked planes on Sept. 11: Marwan al-Shehhi and Ziad Samir Jarrah. Mr. Motassadeq transferred money into Mr. Shehhi's bank account while he was in the United States at pilot training school.
Reuters reports that another key Al Qaeda suspect, Khalid Sheik Mohammed, said Motassadeq didn't know about the plans "
for security reasons."
Meanwhile,
NPR's All Thing's Considered reports that Yaser Esam Hamdi, an American citizen captured fighting for the Taliban in Afghanistan, and currently being detained as an "enemy combatant" at a naval brig in Charleston, South Carolina,
may be released soon (audio).
MSNBC reported Wednesday Mr. Hamdi's lawyers, and lawyers for the US government, told a federal judge that they are
negotiating for his release. The two sides have been discussing Hamdi's possible release since the US Supreme Court ruled June 28 that the US government
could not hold him, or others, as an enemy combatant with no legal rights.
"The thought is, what does he need any further legal proceedings for if the government agrees to release him?" Hamdi's attorney, federal public defender Frank Dunham Jr., said in a telephone interview. "The motion to stay is to ask Judge Doumar to see if we can come to an agreement on that before ringing the fire bells and getting everybody ... back into court to start arguing with each other again," Dunham said.
The
Associated Press reports that Hamdi's release would be a "
remarkable reversal of fortune for the White House." Michael Greenberger, who worked on counterterrorism projects in the Clinton administration's Justice Department, said letting Hamdi go now is "a concession that the legal argument failed and that Hamdi himself is not a threat."
'I think if you went to mat on this and made it a cause celebre, refused him access to counsel and process and ... in the next breath you hear he may be released, that's a major embarrassment to the United States,' Mr. Greenberger said. In an analysis for the
Baltimore Chronicle and Sentinel, Jacob Hornberg of the
Future of Freedom Foundation writes that the Pentagon is getting a hard lesson in the "realities of the
Sixth Amendement." Unlike Iraq, Mr. Hornberer writes, when a court in the US issues an order, the "
Pentagon is required to obey it." For that reason, the Justice Department overruled the Pentagon recently and allowed another terrorism suspect, Ali Saleh al-Marri, detained in the same South Carolina brig as Hamdi, to finally have access to his lawyer.
While the Supreme Court's recent ruling in the Hamdi case related specifically to Hamdi himself, it is settled law in America that the government is required to apply the constitutional principles set forth in Supreme Court decisions in same or similar cases. Thus, when the Court ordered that Hamdi be accorded counsel, it was effectively ordering the Pentagon to permit other detainees similarly situated, such as al-Marri, to be accorded the same right. That is undoubtedly why the Justice Department overruled the Pentagon and advised al-Marri's attorney that he could meet with his client after all. Writing an analysis for the libertarian
Cato Institute, senior fellow in constitutional affairs Robert Levy said it is likely that the other well known "enemy combatatant," Jose Padilla, could also
be released soon (again based on the Supreme Court Hamdi ruling of June 28) unless the government "somehow conjures up charges of treason or criminal acts."
David B. Rivkin Jr. and Lee A. Casey, former Reagan and Bush Sr. Justice Department lawyers, argued in the
Washington Post last week, however, that the Supreme Court decisions mentioned above were
actually victories for the White House.
In a plurality opinion delivered in
Hamdi v. Rumsfeld, the most important of the many opinions and dissents issued in these cases, Justice Sandra Day O'Connor made clear that although the principles of due process may require that captured Al Qaeda and Taliban operatives be given the opportunity to challenge the factual basis of their classification as enemy combatants, this process need not involve the civilian courts. It can take place before a military panel, patterned on the "Article V" procedure established pursuant to the Third Geneva Convention, dealing with the rights of "prisoners of war." Significantly, O'Connor did not suggest that the Geneva Conventions could or should apply in these circumstances but found the US Army regulations implementing this provision to be a useful model. Finally, government prosecutors in Florida also suffered a setback last month when US District Court Judge James Moody ruled they
must do more than just prove that Sami Al-Arian, the former University of South Florida professor accused of supporting terrorism, and his three co-defendants, sent money or other support to the Palestinian Islamic Jihad. The government will have to show that Mr. Al-Arian "knew the money or support would further the PIJ's future terrorist acts." Al-Arian's attorneys called the ruling as a "significant victory" that thwarts the government's attempt to convict Al-Arian and the others through "guilt by association."
"They will have to show that the support they allege Dr. Al-Arian provided was directly connected to the violence the group carried out," said Al-Arian attorney Bill Moffitt. "It significantly raises the burden of proof, and rightly so." Reaction to the ruling was mixed.
FrontPageMagazine argues that the idea that Al-Arian didn't know where the money was going is "
absurd." But several newspapers in Florida, including the
St. Petersburg Times and the
Ledger of Lakeland, called it the
right thing to do and a "
simple affirmation that a person must have criminal intent to be convicted of a serious crime."
Also...
•
Court transcript: NY man admits assisting Al Qaeda (
MSNBC)
•
The tyrannous whims of government (
Counterpunch)
•
The Surveillance-Industrial Complex (
American Civil Liberties Union)
•
Leaders worry US revelations hurting terror fight (
Los Angeles Times)
•
Wired awake - How the US uses drugs to keep soldiers in Iraq awake (
Guardian)
• Feedback appreciated. E-mail
Tom Regan
.
|
RSS feed