Today, Irek Hamidullin, a Russian army defector who joined the Taliban and was captured after a (spectacularly unsuccessful) assault on American and Afghan forces in Afghanistan in November 2009, was sentenced to life in prison after being convicted at trial before a civilian court last August. I report the very interesting background to Hamidullin case on pages 533-534 of Power Wars.
Hamidullin was captured shortly after the newly promoted Brigadier General Mark Martins arrived in Afghanistan and took over as acting head of detention operations there following a stint (as a colonel) as the co-leader of Obama’s 2009 executive order task force for detention policy. On the task force, Martins had been a prime mover in the push to reform and keep, rather than scrap, military commissions, and I separately recount a previously unreported behind the scenes battle he had with David Barron, then the acting head of OLC, on tribunals issues. But Martins was also steeped in the broader lessons of the task force, a chief takeaway of which was that it was smart to be thinking about off-ramps — stable, long-term disposition options — for terrorism captives from the beginning.
From Afghanistan, Martins began lobbying the Department of Justice and U.S. Central Command in Tampa to bring FBI agents to Afghanistan to investigate Hamidullin’s case while the evidence was still fresh, such as by interviewing the soldiers who had captured him, while they were still deployed in the theater. Since Hamidullin could likely not be sent to Russia (lest it abuse him), Martins’ idea was to gather evidence in a way that would meet admissibility standards in civilian court.
Especially in the politically toxic aftermath of the Christmas 2009 underwear bombing, the idea of reading Miranda rights to a terrorism suspect captured in a war zone was a tough sell. But the revamped military commissions system was not yet up and operating, and eventually Martins got what he asked for.
Nearly four years later, in the fall of 2013, the United States was preparing to “end” its military mission in Afghanistan. There turned out to be less to this than advertised, obviously, but the U.S. would get out of the detention business at Parwan, the prison at Bagram Airbase, by the end of 2014. Hamidullin was one of the last detainees in U.S. custody. By then, Martins was back in the United States and serving as the chief prosecutor in the military commissions system.
Now that the tribunals system was operating again, Martins wanted to prosecute Hamidullin in it — if not at Guantanamo, to which Obama had banned bringing any new detainees, then at the military base in Charleston, South Carolina. But holding a tribunal on domestic soil would mean entrenching military commissions as a tool for future captures, and Obama’s national security team had grown skeptical of the tribunals system, which was not working very well in getting to trial in the 9/11 and Cole bombing cases.
Martins lost the policy debate: in the fall of 2014, the Justice Department obtained an indictment of Hamidullin and he was flown to the Eastern District of Virginia for trial before a civilian court. He was convicted earlier this year, and now will serve the rest of his life in prison.
So the irony is that while Martins lost the policy fight to prosecute Hamidullin in his military commissions system, he nevertheless deserves significant credit for this outcome because it was his own earlier intervention to collect civilian court-worthy evidence that led to it.
In today’s article about Obama’s new Gitmo closure endgame of trying to drive down the number of detainees who would be brought to a replacement wartime prison on domestic soil, I mentioned that some lawyers for detainees (including Abu Zubaydah) want to strike plea deals with the government – but, for several reasons, only in the Article III civilian court system, not the military commissions system.
Because Congress has banned bringing detainees into the United States, this raises the question of whether a federal judge would be willing to take a plea and impose a sentence by remote video link. This was too in-the-weeds for a newspaper article, but it is an interesting legal issue. Someone shared with me some preliminary research about why it is murky, which I summarize below.
It turns out that in 2002, the Federal Rules of Criminal Procedure were amended to explicitly permit doing initial appearance hearings (Rule 5f) and arraignments (Rule 10c) by remote video conference, while the rules about plea hearings (Rule 11) and sentencing hearings (Rule 32) are silent on this issue. However, a rule on the defendant’s presence (Rule 43) states that unless Rule 5, 10, or 43 provide otherwise, a defendant “must be present” at stages of trial, including “the plea” and “sentencing.” Basically, the question is whether that is a right, which a defendant may choose to waive, or a requirement, which he cannot waive.
On occasion, prosecutors strike a precooked deal with someone who hasn’t been arrested yet, and who does the whole shebang – presentment to guilty plea – in one hearing, as would be the case with a Gitmo detainee deal. And there are a few precedents for pleas being taken by remote video link, without being overturned by an appeals court. For example:
discussing, without objection, how the district court judge had taken the plea in a videoconference hearing while the judge was in Binghamton, New York, and the defendant, defense lawyer, and prosecutor were in Albany
“On April 12, 2013, defendant entered into a written plea agreement with the Government, and on the same day appeared via video conference to enter a plea of guilty. Defendant waived his right to appear in person, and was sworn prior to entering his plea.”
Rejecting two defendants’ request to plead guilty by remote videoconference as a matter of convenience in light of Rule 43, but also noting that the same court, “on one occasion, permitted a Defendant to enter a plea of guilty, by video conference, upon his consent. In that situation, the Defendant’s physical condition, as confirmed by his treating physicians, was such that he not only could not travel to Ohio from his home in Atlanta, but that he would never be able to do so.
UPDATE: 1/29/2016
I missed an important thing: in 2011, Rule 43 was amended to say a defendant need not be present for a “misdemeanor offense” in which the “offense is punishable by fine or by imprisonment for not more than one year, or both, and with the defendant’s written consent, the court permits arraignment, plea, trial, and sentencing to occur by video teleconferencing or in the defendant’s absence.”
The existence of this explicit exception for certain misdemeanor cases arguably implies that the rule is no exceptions for felony cases. (If so, this would be a true “exception that proves the rule,” that frequently incorrectly invoked concept.)
Here’s what the committee notes said about that amendment:
Committee Notes on Rules—2011 Amendment
Subdivision (b). This rule currently allows proceedings in a misdemeanor case to be conducted in the defendant’s absence with the defendant’s written consent and the court’s permission. The amendment allows participation through video teleconference as an alternative to appearing in person or not appearing. Participation by video teleconference is permitted only when the defendant has consented in writing and received the court’s permission.
The Committee reiterates the concerns expressed in the 2002 Committee Notes to Rules 5 and 10, when those rules were amended to permit video teleconferencing. The Committee recognized the intangible benefits and impact of requiring a defendant to appear before a federal judicial officer in a federal courtroom, and what is lost when virtual presence is substituted for actual presence. These concerns are particularly heightened when a defendant is not present for the determination of guilt and sentencing. However, the Committee concluded that the use of video teleconferencing may be valuable in circumstances where the defendant would otherwise be unable to attend and the rule now authorizes proceedings in absentia.
Here is my latest Gitmo story, surfacing the latest behind-the-scenes stuff on Obama’s fraught push to close Gitmo before he leaves office.
Among the takeaways:
Although Obama has twice said he wants the detainee population (currently 107) down to double digits by around the new year, there are currently no SecDef notices at Congress, so we’re at least 31 days away from any transfers
A country that had agreed to take two detainees is now threatening to walk away if there are any further delays
The fabled “plan” to close Gitmo that is being prepared for Congress (where many GOP critics of Obama falsely say he has had no plan, even though he’s had a plan since 2009 and the basics will not be any different from that one – the problem is people don’t like his plan, not that he doesn’t have one) is going to have much higher per-capita detainee costs than what has been suggested by the figures often cited by closure proponents – that it costs >$3 million per year to house a detainee at Gitmo, versus <$80,000 per year to house a terrorist in the Florence ADX “Supermax.” The reason is that these two figures are based on dividing the number of prisoners at each into a total cost that is not an apples-to-apples comparison. In particular, more than a quarter of Gitmo’s $400 million budget is the cost of the military commissions system, while the Bureau of Prison’s numbers for the Supermax does not include the cost of the civilian courts system.
Carter presented a draft plan to Obama in the Oval at 5 p.m. on Nov. 10, leading to discussion of ways to make the costs lower
The endgame strategy now is to drive down the number of detainees who would need to be brought in the United States, from the current 59 to a goal of less than half of that
One way to drive down the number of detainees is to speed up the work of the Periodic Review Board, which has been moving slowly in reviewing forever detainees but is converting a high number of those it has examined into transferrable detainees
Of the 18 forever detainees the board has reviewed since starting work in the fall of 2013, it decided 15 should now be transferred, if security conditions could be met in the receiving country – a conversion rate of 83%
46 forever detainees have not yet been processed by the board
Another way to chip away at the numbers of future indefinite detainees is to send some to foreign courts for prosecution, like Hambali (2002 Bali bombings)
A third way is to strike plea deals with others, and several want to do so – but in Article III civilian court, not commissions.
Certain charges for vague terrorism-related offenses, like conspiracy to provide material support for terrorism, are only available in civilian court, making more detainees prosecutable
Civilian court rules permit time already in custody to count toward a sentence
A convicted detainee could be extradited to his home country to serve out his sentence, or brought to a regular federal prison as a regular inmate, not the replacement wartime prison
A plea deal would avert the need for a trial in a federal courthouse on US soil, avoiding the security fears that derailed the proposed civilian trial for KSM and the other accused 9/11 conspirators
Certain things are tricky about this, like whether a judge could take a plea and impose a sentence by remote video link, with the detainee still in Gitmo
Today, Ryan Reilly of the Huffington Post released most of Hillary Clinton’s memo to Obama at the end of her tenure as secretary state about how to revive the stalled effort to close Guantanamo. Daniel Klaidman first reported the existence of this memo in a 2013 story in the old Newsweek-Daily Beast. The cover memo makes clear that the memo was drafted by Harold Koh, then the top lawyer at the State Department, Michael Posner, the department’s top human rights official, and Dan Fried, the envoy charged with negotiating Gitmo transfer deals. They recommended that Clinton sign it, and she did.
I wrote about this memo in Power Wars on page 494, in which I also reported that Clinton said similar things to Obama in person. But the White House essentially blew her off. The gap between the White House’s stated policy and its actual bureaucratic efforts (or lack thereof) to close Gitmo in this era upset Clinton, and she delivered a parting shot to the White House in response: she rescued Fried, who was negotiating deals only to have the Pentagon, then run by Leon Panetta, refuse to approve them, from a fruitless job.
Not only did she reassign Fried to new duties, but she closed his office down rather than replacing him – a clear signal that the closure effort was dead, even if the White House insisted otherwise. And she did this without telling the White House what she was doing. They learned about the closure of Fried’s Gitmo office by reading an article I wrote about it on Jan. 28, 2013, when I found out. In the land of executive branch hierarchy and bureaucracy, that was an unmistakable f-you.
Soon afterward, Fried ran into Clinton in the hallway. This was just before she stepped down on Feb. 1.
Thank you for springing me from Gitmo, even if no one else can leave, Fried told her.
I regret this so much, Clinton replied. I’m still steamed at how all this has unfolded.
***
If you think this is interesting, and haven’t yet started reading Power Wars, I invite you to do so.
As a follow up to my pre-Thanksgiving blog post discussing some of the revelations in Power Wars about the invention and significance of transit authority for understanding surveillance, I thought I’d highlight a nugget that is buried in the endnotes. I found or figured out so much stuff in reporting out Power Wars that some had to be relegated to the back of the book. This is an example worth noting.
In 2007, a former Qwest executive, Joe Nacchio, who was being prosecuted for insider trading, alleged in court documents that the NSA had asked Qwest to do something illegal in February 2001, but he had refused. It wasn’t clear what this was about, and it led to a lot of confused and confusing reporting, including speculation that the Bush administration had been trying to start its surveillance program (the New YorkTimes had by then exposed the content component of Stellarwind, and USA Today had written a slightly garbled article about what now know to be the bulk phone metadata component) even before 9/11 — despite publicly justifying its program as a response to the terrorist attacks. Here is representative coverage from the time in Wired, The Washington Post, and my future colleagues at The New York Times; citing these articles in his endnotes, James Bamford later recycled some of these glimpsed-through-a-glass-darkly claims in what I believe to be an errant paragraph in his otherwise excellent book The Shadow Factory.
This reporting tended to project what we knew at the time about Stellarwind onto the vague words in Nacchio’s court filing. But the idea that Bush and the NSA were pushing this long before 9/11, indeed just a month after the change in administration, never really made any sense, and none of the post-Snowden revelations has corroborated that theory. The problem was that we did not have all the puzzle pieces to correctly identify what we were looking at. Now that we understand what transit authority is and its pre-9/11 history, a much simpler explanation presents itself, one that fits with, rather than contradicts, everything else we now know. Here is my endnote:
If you are interested in stuff like this, and haven’t yet picked up a copy of Power Wars, I encourage you to do so!
Although “Power Wars” is mostly about the Obama era, “Chapter 5: Stellarwind (Surveillance 1928-2009)” focuses on events years before he took office. In it, I piece together fragments of recently revealed information – from the Snowden leaks, the resulting wave of government declassifications, and FOIA lawsuits by myself and others – to form the first coherent public history of American surveillance policy and technology over the past decades. I fill in remaining gaps in that narrative with original reporting, and the below document is a key puzzle piece in understanding how the partnering relationship between the NSA and post-Ma Bell telecoms developed in the late 1980s, laying the groundwork for what happened after 9/11.
It involves the invention, late in the Reagan administration, of something called “transit authority.” This permits the NSA, on domestic soil and without a warrant, to collect foreign-to-foreign communications that are passing over the American network under the permissive rules of Executive Order 12333 surveillance – which permits bulk warrantless content and metadata collection – rather than the restrictive rules of the Foreign Intelligence Surveillance Act. Pieces of that story are discernable in this fascinating memo from the Bush-Quayle administration. The memo was written by Mary Lawton, who was then the top intelligence lawyer in the Justice Department, to Dan Levin, then an official in the Office of the Deputy Attorney General charged with overseeing national-security matters. (Lawton died in 1993.)
Crucial passages of this memo are obviously redacted; it was officially processed and cleared for release through the Freedom of Information Act several years ago. Notably, the original requester was David Kris, the former assistant attorney general for the Department of Justice’s National Security Division, when he was working on his excellent book, National Security Investigations and Prosecutions. That book, however, had to undergo pre-publication review by censors. Mine did not.
See Power Wars, see Chapter five, section four, “Transit Authority,” for a greater description and explanation of what is going on here — important parts of which are based on my interviews with officials familiar with that era that dovetail with what this document’s unredacted portions are hinting at. But I will explain briefly below.
The essence is that after the Church Committee, Congress enacted FISA to regulate wiretapping on domestic soil. But the statute was written in a very complex way designed to obscure from adversaries and the public alike what it did and did not do. In particulate, it left the NSA free to wiretap without warrants using submarines to tap cables on the international seabed or by pointing antennas at communications satellites handling international phone calls. Both of those techniques would collect both purely foreign communications and one-end-foreign, one-end-domestic ones. (The NSA separately created procedures barring the deliberate targeting of an American absent special permission, but this would still permit bulk collection without targeting anyone, or warrantless collection targeting a foreigner even when he was talking to an American.)
But this accommodation to the intelligence community began to break down in the mid 1980s when copper coaxial cables and phone system satellites were replaced by a network using fiberoptic cables. For technical reasons, it is harder to tap a fiberoptic line from the middle, deep under the water. The NSA needed to do it from the cable landing stations where the cable emerged from the water and plugged into the network. That seemed to bring previously unregulated surveillance activities under FISA’s individual warrant requirement.
In 1987, the Reagan administration drafted legislation to alter FISA in light of this changing technological situation, so that it could again collect communications with at least one end on foreign soil without a FISA warrant (at least so long as it did not target an individual American.) But by 1990, the Bush-Quayle administration decided not to go forward with it. Part of the reason, as Lawton candidly acknowledged in this memo, was that the bill would have to be written in such a way as to keep obscure what it was doing, which would lead to public speculation that something sinister was going on. (There’s secret law, and then there is intentionally incomprehensible law.)
But the Reagan administration had, in 1988, invented something that partially mitigated its problem – for a growing amount of purely foreign-to-foreign traffic crossing the American network. The idea was that a careful parsing of FISA showed that the statute did not cover transiting foreign-to-foreign communications, even if collected from a wire on domestic soil, and that the Fourth Amendment did not cover foreigners abroad. Thus the president had inherent authority to collect, without a FISA warrant, a phone call from, say, someone in France to, say, someone in Iran, as it crossed a domestic network switch. The Reagan legal team produced a memo for the president to sign to the secretary of defense and the attorney general saying he understood that they were interpreting the law in this way and approved. Each subsequent president, including Obama in January 2012, has signed such a memo.
Based on that presidential authority, back in the spring of 1988, then-attorney general Edwin Meese and then-deputy defense secretary William Taft signed a new “Classified Annex to Department of Defense Procedures Under Executive Order 12333” that permitted this form of warrantless surveillance to commence on domestic soil under 12333 rules, not FISA rules. That document was partially declassified after the Snowden leaks and the uncensored parts include a reference to transiting communications.
The invention of transit authority led to partnerships between the NSA and telecommunications companies. There was no need to tell the phone companies when the NSA was eavesdropping on their satellites or unilaterally tapping their coaxial cables in international waters. But collecting transiting communications from fiberoptic lines meant getting into their facilities. The phone companies had to know and cooperate, permitting the installation of equipment on switches to filter communications and forward foreign-to-foreign transiting ones to the NSA’s processing systems. This was a different sort of relationship – voluntary cooperation. The insight is that FISA simply did not regulate that type of communication, so just as no warrant was required, the FISA Court also had no jurisdiction to issue orders compelling the telecoms to turn them over to the government, either.
In the decade that followed this memo, pressure mounted on the other half of the issue identified in the 1980s – the NSA’s ability to collect communications with at least one end on domestic soil. This became particularly acute after the rise of American web-mail, like Yahoo Mail and Hotmail and then Gmail, in which purely foreign-to-foreign messages looked one-end-domestic because they were being sent to or retrieved from a server in California.
After 9/11, when the Bush administration wanted to begin conducting surveillance of one-end-domestic messages without a FISA warrant, the partnership relationships with the telecoms – and the pre-existing equipment capable of carrying out that collection – dating back to the arrival of transit authority became crucial. The road to Stellarwind began with the secret invention of transit authority.
We have posted the full text of Chapter One: The Captive on the website as a free sample chapter. It reconstructs the day of the Christmas 2009 underwear bombing, and has new information about the famous decision to read the terrorist the Miranda warning.
We’ve also put up an expanded table of contents, showing the page numbers and section headings within each chapter.
And we’ve put up the index for the hardcover edition.
My hope for Power Wars is that people will still be using it many years from now as the definitive investigative history of post-9/11 policymaking in the Obama era. So I want it to be as clear and accurate as I can make it. To that end, I have made some adjustments in subsequent printings.
First, since I turned in the book in August, I found a few places where I used the same word twice in awkwardly close proximity; instances where I referred to people by their last names when I had not mentioned them before or not for many pages; etc. I also found several places where I could express certain thoughts with greater clarity. So I have tweaked such things as I found them.
Second, in a few places, more information subsequently became available and so I added it – sometimes trimming other bits to make room for it on the page. In September, as a result of one of my Freedom of Information Act lawsuits with the New York Times, the government declassified additional portions of the inspector general report on the Stellarwind surveillance program, revealing a previously hidden dimension to the 2004 “hospital room” crisis. And I also learned additional details about the lawyering for the Osama Bin Laden raid, which were reflected in myTimes article last week that was largely derived from the book. The original print run of the hardcover, for example, says CIA general counsel Stephen Preston delivered a briefing in the Situation Room sometime in late March or early April 2011. By the time of my Times article, I knew it was on April 12, 2011. Future printings of the book will have this additional information.
Most importantly, some of the information I gathered after August improved my level of knowledge about the Bin Laden raid lawyering. As reflected in my Times article, it was Mary DeRosa, the NSC legal adviser, not Preston, whose project was to write the memo explaining why it would be lawful for Obama to order a mission with the objective of killing Bin Laden (subject to a requirement to accept a surrender offer if feasible). I also now think it missed the mark to portray the four lawyers as having “construed extremely narrowly what kind of surrender offer would count as possible to accept.” The military already had rules of engagement for Special Operations Forces raids on potentially booby-trapped terrorist compounds, so a better way to frame it is that the lawyers discussed the implications of authorizing a kill mission and scenarios in which the SEALs might deem apparent surrender offers infeasible to accept. Finally, the early print run said there was a policy memo by DeRosa about legal issues raised by putting SEAL Team Six under CIA direction, but I now think that was a conflation with the paperwork I separately discussed Jeh Johnson, the Pentagon general counsel, preparing for the Defense Department to loan SEAL Team Six to the CIA. I am making these updates for future printings, and they are already included in the e-book version.
This is a set of documents related to the Obama administration’s disputed decision to transfer five higher-level Taliban detainees to Qatar as part of the prisoner exchange deal for Sgt. Bowe Bergdahl, who had been captured by the Taliban in 2009 after wandering off his outpost and was being held under horrific conditions. I discuss this controversy and these documents in Chapter 10, Section 15: “Violating the Transfer Restrictions to Save Bergdahl.”
This was the first time the Obama administration violated statutory transfer restrictions on Guantanamo, citing (in part) his constitutional powers.
The deal was politically controversial for several reasons, but only one had a legal hook: the Obama administration had not followed one of Guantanamo’s transfer restrictions, requiring the defense secretary to give Congress 30 days advanced notice before any detainee departed the wartime prison. Republicans said the Obama administration had violated that law, as well as a law forbidding the expenditure of funds not appropriated by Congress. (The transfer restrictions are pegged to Congress’s power of the purse.)
The defense secretary, Chuck Hagel, told Congress that the substantive requirements of the statute had been met – he was satisified the transfer was in the national security interest of the United States, and that the risk of recidivism had been substantially mitigated. But the administration, saying that waiting once the deal was struck would have endangered Bergdahl’s life, did not adhere to the 30-day waiting period.
In its defense, the administration made a strained statutory argument – that Congress had not intended the statute to apply to prisoner exchanges – but backed it with a constitutional argument: if the statute did apply to prisoner exchanges like the Bergdahl deal, then it violated President Obama’s constitutional authority, as commander-in-chief, to protect the lives of Americans and servicemen abroad, and he could lawfully violated it.
This resulted in a back and forth with the Government Accountability Office, a congressional watchdog, in which Pentagon laid out its legal thinking. The administration also said that the Justice Department – meaning the Office of Legal Counsel, led by Karl Thompson – agreed with it.
This document, whose full text has not previously been made public, is a three-page memo that Susan Rice, Obama’s national security adviser, sent to Chuck Hagel, then the secretary of defense, in May 2014. (The existence of this memo has been previously reported.) I discuss it in Chapter 10, Section 14: “Risk Aversion.”
At the time, Hagel was dragging his feet on approving transfers of lower-level detainees to other countries. Part of the Congressional transfer restrictions required the defense secretary to tell Congress, at least 30 days before any transfer from Guantanamo, that he had personally decided that the transfer was in the national security interest of the United States and that the threat of post-release terrorism by the detainee had been substantially mitigated, including by security arrangements with the receiving country.
This law has had the effect of making the defense secretary, essentially, personally accountable if a former detainee goes on to engage in terrorism, and a series of defense secretaries – Bob Gates, Leon Panetta, Hagel, and later Ashton Carter – have at times displayed reluctance to move quickly on approving proposed transfer deals.
In the spring of 2014, as Hagel was dragging his feet, national-security officials drafted this memo and Rice signed it. Saying she was speaking for President Obama, Rice instructed Hagel to interpret his statutory duties in a way that would be more favorable to winnowing down the detainee population.
