The Rights of the People (63 page)

70.
Government’s opening brief,
Kline
, p. 12.

71.
Unpublished opinion,
Kline
.

72.
Christine Hanley, “Ex-Judge Collapses at Sentencing,”
Los Angeles Times
, Feb. 21, 2007, p.B3.

73.
Posted by KhayotiK, Feb. 23, 2007, on
Download.com
.

  
1.
Nabil al-Marabh “had once roomed with a known al Qaeda operative, and he himself was now number 27 on the FBI’s terrorist watchlist,” writes Erich Lichtblau in
Bush’s Law: The Remaking of American Justice
(New York: Pantheon, 2008), p. x. In the end, however, the intelligence was deemed incorrect, and the government determined that al-Marabh was no threat and had no ties to terrorist groups.

  
2.
The fraudulent documents included a passport, a Social Security card, a U.S. Immigration form, a U.S. visa, and a U.S. green card, most in the name of Michael Saisa.
United States v. Karim Koubriti
, Olm80779 (E. D. Mich.) Criminal Complaint, Sept. 17, 2001.

  
3.
United States v. Karim Koubriti et al.
, 01-80778, Second Superseding Indictment, Aug. 28, 2002. The initial search was based on an FBI claim that Koubriti had given consent, although he recalled only signing something in English, which he couldn’t read. Later, a warrant was obtained for a more thorough search.

  
4.
The account of the Sabin-Convertino clash was confirmed by one other participant. Paul Egan, “Cleared of Misconduct, Former U.S. Prosecutor in Terror Case Seeks Redress from the Government,”
Detroit News
, at
http://www.mail-archive.com/[email protected]/msg54606.html
.

  
5.
Norman Sinclair, “Fed Terror Trial Faced Probems,”
Detroit News
, Oct. 17, 2007.

  
6.
William Swor, attorney for Abdel Elmardoudi, interview with author, May 11, 2006.

7.
Brady v. Maryland
, 373 U.S. 83 (1963).

8.
Giglio v. United States
, 405 U.S. 150 (1972).

9.
The tactic raised objections from one FBI agent, Jim Brennan, and some Justice Department officials in Washington.
United States v. Karim Koubriti et al.
, 01-80778 (E.D. Mich.), Government’s consolidated response concurring in the defendants’ motions for a new trial and Government’s motion to dismiss count one without prejudice and memorandum of law in support thereof, Aug. 31, 2004, p. 46.

10.
Government’s motion to dismiss,
Koubriti et al.
, p. 30.

11
“Colonel Mary Peterson—U.S. Air Attache to Poland,” U.S. Diplomatic Mission, Warsaw, Poland, March 5, 2009,
http://poland.usembassy.gov/embassy-events/embassy-events-2009/colonel-mary-peterson–u.s.-air-attach-to-poland-5-march-2009
. Peterson did not respond to an invitation to offer her viewpoint. E-mail to Peterson from author, May 8, 2009.

12.
For details on Convertino’s clashes with senior Justice Department officials, see Egan,
Detroit News
, at
http://www.mail-archive.com/[email protected]/msg54606.html
.

13.
In his suit, Convertino subpoenaed David Ashenfelter, the reporter, to learn which officials had leaked the information that he was under investigation. Ashenfelter prevailed in federal court in resisting the disclosure based on his Fifth Amendment right against self-incrimination, a novel defense for a journalist.
Convertino v. United States Department of Justice
, 07-CV-13842-DT (D.C. E.D. Mich., So. Div. 2009). Convertino’s suit against the Justice Department was still pending at the time of this writing. Koubriti’s, allowed to go forward by a federal district court, was dismissed by the Sixth Circuit on the ground that Convertino had absolute prosecutorial immunity since his failure to disclose exculpatory evidence was committed as an integral part of the judicial process, which is not susceptible to civil liability.
Koubriti v. Convertino
, 09-1016 (6th Cir. 2010).

14.
John Solomon, “Despite Evidence, Man Deported,” AP, June 3, 2004,
http://www.boston.com/news/nation/articles/2004/06/03/
despite_evidence_man_deported/
.

15.
Ed White, “U.S. Willing to Drop Fraud Charge Against Man at Center of 2003 Botched Detroit Terror Trial,” AP, July 28, 2009.

16.
Since the penalty for failing to Mirandize someone in custody is the exclusion of his statements from evidence, Abdulmutallab did not have to be read his Miranda rights, one argument held, because his statements would not be necessary to convict him, given that a planeload of witnesses saw him try to detonate the explosives. He could have been questioned for intelligence purposes. In 2010, Attorney General Eric Holder proposed legislation to expand Miranda’s public-safety exception so that suspected terrorists could be questioned before being read their rights, and their statements used in trial. Charlie Savage, “Holder Supports a Miranda Limit,”
New York Times
, May 10, 2010, p. A1.

17.
Carrie Johnson, “Airliner Plot Being Prosecuted ‘In Wrong Place,’ Giuliani Says,”
Washington Post
, Jan. 9, 2010, p. A3.

18.
Richard B. Zabel and James J. Benjamin, Jr.,
In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts
(New York: Human Rights First, 2008).

19.
Stuart Taylor, Jr., “The Case for a National Security Court,”
National Journal
, Feb. 27, 2007. Five of the plotters were arrested while mixing two hundred gallons of gasoline with fertilizer in a Queens garage; eight others were arrested subsequently. Mukasey also alleged, incorrectly, that the disclosure of bin Laden’s satellite phone records in another case alerted him to the fact that his phone was monitored, and he stopped using it. Actually, he had stopped using it years earlier. Zabel and Benjamin,
In Pursuit of Justice
, p. 89. Mukasey also rescinded the 2001 and 2002 memo from the Justice Department’s Office of Legal Counsel authorizing the domestic use of the military against suspected terrorists. Steven G. Bradbury, “Re: October 23, 2001 OLC Opinion Addressing the Domestic Use of Military Force to Combat Terrorist Activities,” Memorandum for the Files, Office of Legal Counsel, U.S. Dept. of Justice, Oct. 6, 2008.

20.
Classified Information Procedures Act, Pub. L. No. 96-456, 94 Stat. 2025, 2025-31 (1980), at 18 U.S.C. app. 3.

21.
The term “graymail” may come from L. Patrick Gray, an FBI director who was prosecuted under the Civil Rights Act for ordering agents to wiretap without warrants and break into homes and photograph diaries, letters, and various documents belonging to friends and relatives of the Weather Underground, a violent antiwar group. His lawyers, arguing that the surveillance was legal because it was aimed at gathering foreign intelligence, not criminal evidence, demanded discovery of classified information showing the Weather Underground’s connections to Cuba and East Germany. The assumption was that the government would drop the case, which it did against Gray but not against two other FBI officials, Edward S. Miller, head of intelligence, and Mark Felt, deputy director, who had become Deep Throat, the
Washington Post
’s key source in the exposure of the Watergate break-in. They were convicted and fined but pardoned by President Ronald Reagan. Frank Dunham, Jr., Felt’s attorney, interview with author, Jan. 4, 2005.

22.
One approach, used in the Moussaoui and Abu Ali cases, is the “silent witness rule,” in which a witness may refer to Country A, Person 1, page 14, and the like; only the judge, jury, prosecution, and defense counsel would have keys to this simple code. The specifics would not be disclosed to the public. Zabel and Benjamin,
In Pursuit of Justice
, pp. 86–87.

23.
Ibid., p. 9.

24.
Ex parte Merryman
, 17 F Cases 144 (D. Md. 1861), in which Chief Justice Roger Taney, sitting as a circuit court judge, found that since the power to suspend was located in Article I, creating the legislative branch, only Congress could do so, and only “when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Constitution, Article I, Section 9, Paragraph 2.

25.
Ex parte Milligan
, 71 U.S. 1 (1866).

26.
Ex parte Quirin
, 317 U.S. 1 (1942). Two German submarines had landed them in Florida and Long Island. The American citizen, Herbert Hans Haupt, could have been held for the duration of the conflict without trial, the Court ruled. The military trial had begun before the Court heard the case, and shortly after the decision upholding the military tribunals, six of the eight, including Haupt,
were executed in the electric chair. The other two, who had confessed and cooperated, received life terms and were deported to Germany after the war.

27.
Hamdi v. Rumsfeld
, 542 U.S. 507 (2004). The Fourth Circuit had dismissed Padilla’s habeas petition, ruling that the president could hold him without factual inquiry or evidentiary hearing. 296 F3d 278 (4th Cir. 2002). Rather than try Hamdi, the government agreed to release him to Saudi Arabia in exchange for his renunciation of American citizenship. The dire threat he posed suddenly evaporated.

28.
Hamdi v. Rumsfeld
, 542 U.S. 507 (2004). The decision was by plurality, with two pairs of dissenters. Souter and Ginsburg found no congressional authorization for an enemy-combatant designation. They denied that the federal statute on detentions, 18 U.S.C. § 4001(a), had been satisfied by the post-9/11 Authorization for Use of Military Force, 115 Stat. 224, which they said was insufficiently clear and robust. And they noted that thirty-eight days after adopting that resolution, the same Congress passed the Patriot Act, which set a seven-day limit on detention of alien terrorist suspects without criminal charges or deportation proceedings. 8 U.S.C. § 1226a(a)(5). Scalia and Stevens noted that in long-standing English tradition, inherited by the framers, aliens had been interned until the end of wars, but citizens who fought on the enemy’s side had been prosecuted criminally for treason. The plurality (O’Connor, Rehnquist, Kennedy, and Breyer), having found congressional authorization for the enemy-combatant designation, did not reach the question of whether, as the Bush administration asserted, the president’s powers as commander in chief, in Article II of the Constitution, also constituted authorization. (Souter acerbically cited Justice Robert Jackson’s observation in 1952 that the president is not commander in chief of the country, only of the military.)
Youngstown Sheet & Tube Co. v. Sawyer
, 343 U.S. 579 (1952). Thomas was the only justice to find unfettered executive power to detain Hamdi indefinitely as an enemy combatant.

29.
Frank Dunham, interview with author, Jan. 4, 2005. Dunham doubted that the renunciation of citizenship, which by law is supposed to be voluntary, was valid in that it was coerced in exchange for release. Terri Nelson, “Hamdi Returned to Saudi Arabia,” AP, Oct. 11, 2004.

30.
Scott Shane, “Divisions Arose on Rough Tactics for Qaeda Figure,”
New York Times
, Apr. 18, 2009, p. A1.

31.
Jane Mayer,
The Dark Side
(New York: Doubleday, 2008), pp. 155-56; interviews with Andrew Patel, one of Padilla’s attorneys.

32.
George W. Bush, “To the Secretary of Defense,” June 9, 2002.

33.
The Court had rejected Padilla’s petition earlier on the argument that it had been brought in the wrong jurisdiction—the Second Circuit, covering New York, where he had first been jailed as a material witness, rather than the Fourth Circuit, covering South Carolina, where he was currently held in the Navy Brig.
Rumsfeld v. Padilla
, 542 U.S. 426 (2004). The Second Circuit had found no presidential authority to hold him; the Fourth Circuit later recognized the authority. Miffed that the government was unwilling to test its ruling in the highest court, the judges refused to approve Padilla’s transfer to civilian courts.
Padilla v. Hanft
, 05-6396, Order, Dec. 21, 2005. The Supreme Court then approved the transfer and vacated the Fourth Circuit’s opinion without giving full consideration to the question of whether a U.S. citizen could be seized on American soil
(as opposed to the battlefield) as an enemy combatant under the September 11 congressional authorization.

34.
Deputy Attorney General James Comey, testimony, Senate Judiciary Committee, June 1, 2004.

35.
Declaration of Vice Admiral Lowell E. Jacoby (USN), Director of the Defense Intelligence Agency, in
Padilla v. Bush
, 02 Civ. 4445 (S. D. N.Y 2003), Jan. 9, 2003.

36.
Motion to dismiss for outrageous government conduct,
United States v. Padilla
, 04-60001 (S. D. Fla., Miami Div. 2006), Oct. 4, 2006.

37.
Michael Mobbs, “Declaration of Michael H. Mobbs,” affidavit in
Padilla v. Bush
, 02 Civ. 4445 (D.C. S. D. N.Y. 2002), Aug. 27, 2002.

38.
Judge Marcia Cooke, in Kirk Semple and Carmen Gentile, “Padilla Sentenced to More Than 17 Years in Prison,”
New York Times
, Jan. 22, 2008.

39.
Al-Marri v. Hanft
, 2-04-2257-26AJ (D.C. S.C.), Petition for Writ of Habeas Corpus, July 8, 2004; Respondent’s Answer to the Petition for Writ of Habeas Corpus, Sept. 9, 2004;
United States v. Al-Marri
, 09-CR-100-30 (D.C., Cent. Dist., Ill., Peoria Div.), indictment, Feb. 26, 2009. He was initially arrested as a material witness, then indicted for counterfeit credit cards, then charged with making false statements to a bank and to the FBI. He moved to suppress statements he claimed were made under torture, and the day before the hearing was transferred to military custody. See also ACLU, “Al-Marri Sentence Proves Federal Courts Can Handle Terrorism Cases,” Nov. 2, 2009.

40.
Rasul v. Bush
, 542 U.S. 466 (2004), by a 6–3 majority.

41.
28 U.S.C. § 2241.

42.
Hamdan v. Rumsfeld
, 05-184 (2006). See also UCMJ, Art. 21, 36. The majority found that the Geneva conventions were judicially enforceable because of their Common Article 3, which applied to the Guantánamo prisoners as nonmembers of any duly constituted military force. The article applies to a conflict not of an international character occurring in the territory of one of the conventions’ signatories, meaning that it protects individuals in such territory, whether or not they are affiliated with a signatory or a nonsignatory. The Geneva conventions provide for a regularly constituted court, which can include courts-martial or military commissions, if deviations from court-martial procedures are required for practical reasons. Hamdan’s lawyer, Neal Katyal, took the opposite side in a similar 2010 case, arguing on behalf of the government, as principal deputy solicitor general, that habeas corpus should not be extended to the U.S.-run prison at Bagram in Afghanistan, to which suspected terrorists seized elsewhere had been taken. The D.C. circuit ruled that the Bagram prisoners were not entitled to the habeas right.
Maqaleh v. Gates
, 09-5265 (D.C. Cir. 2010).