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Time for a Gag Order in Boston Bombing Case

The law enforcement leaks are over the top. It is inexcusable that the FBI or law enforcement officials with whom they shared information are leaking details of a purported confession by Boston Marathon bombing suspect Dzhokhar Tsarnaev.

The Washington Post has more leaks. Among the unnamed sources cited: A senior law enforcement official; a U.S. counter-terrorism official; "a U.S. official who has been briefed on the interrogation and who spoke on condition of anonymity because the investigation was ongoing"; and a U.S. intelligence official. [More...]

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Legal Analogies to Boston Bombing Suspect Dzhokhar Tsarnaev

Update 7:40 pm ET: CNN reports Dzhokhar Tsarnaev is awake and answering law enforcement's questions. No wonder the U.S. Attorney didn't file charges today. They didn't want a lawyer appointed who could demand to see him and advise him not to sign any waivers. The Boston Police Commissioner said today the brothers acted alone. Where's the continuing public safety threat? An internal FBI policy memo that extends the public safety exception beyond what the Supreme Court has authorized is not controlling law.

Can the Federal Defender file a "miscellaneous action" and ask to be appointed now for the limited purpose of advising him of his rights and request an order directing the FBI to allow them to meet with him before it attempts to secure any waivers?

Update 1:18 pm: It looks like the feds won't be able to use the Faisal Shahazad scenario with Dzhokhar Tsarnaev. He cannot speak at all due to being shot in the throat. Thus, it's unlikely he can be questioned at all, or that he would be able to provide a knowing and voluntary waiver of his right to timely appear before a judge and be appointed counsel after charges are filed and before presentment. Due to his injuries and inability to be questioned, reports now say charges will be filed, perhaps today, a judge will advise him at the hospital, and the public defender's representation would be effective upon advisement. [More...]

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Boston Bombing Developments: Saturday

Here's a thread to discuss continuing developments in the Boston Marathon Bombing case and Dzhokhar Tsarnaev. The Federal Defender in MA today said it expects its office to be appointed to be appointed.

What I've been reading:

What I'm not reading: Any of the garbage put out by Lindsay Graham. [More...]

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Guantanamo Judge Orders End to Secret Censoring of Hearing Testimony

An unnamed government agency has been secretly monitoring court proceedings in the pre-trial hearings of the 9/11 defendants at Guantanamo and pushing the censor button. The judge today ordered it to stop.

Army Col James Pohl ordered an unnamed government agency to remove censorship equipment, as a second round of pretrial hearings finished on Thursday....The judge said in his ruling that he had sole authority to decide when to close a hearing or stop spectators - including journalists and relatives of the victims - from listening to testimony.

From the transcript [Unofficial/Unauthenticated Transcript of the KSM et al. (2) Hearing Dated 1/31/2013 from 9:01 AM to 9:22 AM, accessible here.) [More...]

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Rana Sentencing: Judge Rejects Terror Enhancement

Tahawwur Rana, David Headley's co-defendant in the Chicago terror case related to the Mumbai bombings and planned attack on a Danish newspaper, was sentenced to 14 years today. The Government had sought a 30 year sentence.

Rana was convicted on two counts of a Superseding Indictment (Counts Eleven and Twelve) of conspiring to providing material support to a plot to attack a private newspaper in Denmark, the Jyllands-Posten, and providing material support to Lashkar e Tayyiba (“Lashkar” or “LeT”), a designated terrorist organization. The plot against the Jyllands-Posten was not executed, and no one was killed or injured.

Rana was acquitted on a third charge (Count Nine) which alleged that he conspired to provide material support to attacks in India, including the Mumbai attack in 2008. (Counts Nine and Eleven were charged as a conspiracy, Count 12 was charged as a substantive offense.)

The Judge rejected the Government's request to apply the terror enhancement guideline to Rana. Under the U.S. Sentencing Guidelines, the enhancement provides for a 12 level increase in the base offense level, and automatic placement in criminal history category VI (the highest category) if a defendant’s “offense is a felony that involved or was intended to promote a federal crime of terrorism.” [More...]

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Khalid Sheikh Mohammed Addresses the Court

Khalid Sheikh Mohammed was allowed to address the military commission trial judge today at Guantanamo. When he was done, the judge said it will be the last time the defendants are allowed to comment on the course of proceedings:

Mohammed told the judge, Army Col. James Pohl, that "the government uses national security as it chooses," urging him to keep that in mind as he considers requests from defense lawyers and the American Civil Liberties Union to scale back the rules for evidence and testimony.

"Many can kill people under the name of national security, and to torture people under the name of national security," the Arabic-speaking Mohammed said through a translator. "And detain their underage children under the name of national security."

In an apparent reference to Osama bin Laden, Mohammed noted that "the president can take someone and throw them into the sea in the name of national security.

[More...]

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Diminished Media Presence at Gitmo for Tomorrow's Hearings

Khalid Sheikh Mohammed and the other 9/11 defendants have hearings this week, beginning tomorrow at Guantanamo's court for military commissions -- their first hearings since May.

Reporters who are there tonight say on Twitter the number of reporters seems to have decreased by 50%. Some estimate only 25 reporters are there, and several of them are there for the first time, representing organizations such as Jesuit Weekly and the Bergen Record.

The defense lawyers complained today that the office space they were given is infested with rats, rat feces and mold and making them ill. They filed a Motion called "Mr. Mohammad's Emergency Motion to Delay the October 2012 Hearing due to Defense Offices Being Deemed Unsafe by the US Naval Hospital Guantanamo Bay due to the Presence of Hazardous Mold, Rodents, and Rodent Feces." While (naturally) the motion and responses are sealed, the Court's one sentence order denying the motion is available on the docket (choose the active case for KSM from the dropdown list and then the link for all documents at the bottom or the docket link.) [More...]

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Abu Hamza's First U.S. Court Appearance

Cleric Abu Hamza, aka Mustafa Kamel Mustafa, aka Abu Hamza al-Masri, made his first court appearance in New York today, following his extradition yesterday from the UK.

Manhattan U.S. Attorney Preet Bharara's press release is here. The 2006 Second Superseding Indictment is here.

Along with Abu Hamza, four other alleged terrorists were flown to the U.S. Two will be tried in Connecticut, and three in New York. The other four are Khaled al-Fawwaz, Babar Ahmad, Adel Abdul Bary and Syed Talha Ahsan.

In exchange for allowing the extradition, the U.K. obtained a promise from the U.S. that all five would be tried in civilian courts and not face the death penalty.

The charges against Abu Hamza include conspiring to set up a training camp in Bly, Oregon. His co-defendant Oussama Kassir, from Sweden, was convicted at trial in 2009 and received life in prison, which he is serving at Supermax in Colorado. Kassir's conviction was upheld on appeal in 2011.[More....]

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Guantanamo Hearings Canceled for 911 Defendants

Stormy weather resulted in the cancellation of six days of hearings for the 911 defendants at Guantanamo, which scheduled to begin yesterday and first postponed until tomorrow.

he U.S. National Hurricane Center’s tracking map shows Tropical Storm Isaac crossing Haiti as a hurricane on Aug. 24 and striking Cuba before arriving at the Florida coast below Cape Coral on Aug. 27.

The hearings have not yet been rescheduled. 25 pretrial motions were on the agenda, including some by the media.

Defense lawyers, journalists and representatives of non- governmental organizations including Human Rights Watch were on hand to watch the proceedings.

The last hearing was in May. One of the defense lawyers said today trial is unlikely to occur until four years from now, due to the hundreds of motions that will be need to be resolved.

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Chaotic Court Proceedings at Guantanamo

Here is the New York Times account of today's proceedings at Guantanamo (mobile version with some more details here.) Carol Rosenberg via Twitter has the play by play and an article at the Miami Herald with a full recap.

The Judge did offer to let the defendants plead not guilty, but they deferred. Ramzi Binalshibh wanted to talk about the conditions of confinement at Gitmo, the judge said it wasn't the proper time. Binlashibh yelled out:

“Maybe you are not going to see me again. Maybe they are going to kill us and say that we have committed suicide...The right time is now, not tomorrow." [More...]

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9/11 Defendants Appear at Guantanamo Court

Today, the 5 detainees at Guantanamo charged with the September 11, 2001 attacks were brought to a courtroom at the Expeditionary Legal Complex (ELC),

They are Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarak Bin 'Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi.”

They are all in court now. So far, none have uttered a word. While the proceeding is called an arraignment, the defendants are not called upon to enter a plea. The judge reads them their rights, an interpreter who is not physically present interprets one line at a time, and the Court asks if they understand their rights. (The interpreter is in a different building.) So far, none of the defendants have replied to the judge's questoins, which goes on the record as "refused to answer." [More...]

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Another Terror Conviction in Federal Court

Adis Medunjanian, a U.S. citizen, was convicted by a New York federal court jury yesterday of plotting to attack the New York subway system with two of his high school classmates, Najibullah Zazi and Zarein Ahmedzay. Zazi and Ahmedzay had pleaded guilty earlier and testified against Medunjanian in exchange for a lesser sentence.

Medunjanian, originally from Bosnia, emigrated here with his family. His mother and sister, a nurse, testified on his behalf at trial.

The plot began after the defendant, Adis Medunjanin, a naturalized citizen born in Bosnia, went to Pakistan with two friends from high school with the intention of fighting American troops in Afghanistan. The two friends testified that they were instead recruited to attend a Qaeda training camp, where they were told they would be far more valuable to their cause by returning to the United States to carry out an act of terrorism.

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Najibullah Zazi Testifies for Government in Terrorism Trial

Najibullah Zazi testified today in the trial of Adis Medunjanin, his alleged co-plotter in a planned attack on the New York subway system.

In his opening on Monday, defense attorney Robert Gottlieb accused the government of using “inflammatory rhetoric” about al-Qaida and terrorism to prevent jurors “from seeing the truth about this case.” The lawyer conceded his client had sought to support the Taliban’s struggle against U.S. forces in Afghanistan, but denied he ever agreed to kill American civilians for al-Qaida.

“The truth is that Adis Medunjanin is not a terrorist,” he said. “Mr. Medunjanin never planned to bomb the New York City subways.”

[More...]

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9/11 Defendants Military Commission Proceedings Scheduled

The five detainees charged with participating in the 9/11 attacks will appear in court at Guantanamo within 30 days to schedule proceedings in their trial by military commission. They include Khalid Sheikh Mohammed, Waleed bin Attash, Ramzi Binalshibh, Ali Abd al-Aziz Ali and Mustafa Ahmad al-Hawsawi

An arraignment will be held at Guantanamo next month, and all of the pretrial issues that surfaced in the earlier case will have to be litigated again, including the issue of self-representation and the mental health and capacity of Binalshibh and Hawsawi.

All of them were held in secret overseas prisons until 2006 when then President Bush ordered them moved to Guantanamo. All alleged being tortured. The death penalty is being sought for all of them.

The 123 page charge sheet is available at the Military Commission's website here (click on Khalid Sheikh Mohammed et al (2), and then use the arrow to go to "Docket." They will also be tried on the charges returned in January, 2012, available at the same link. [More...]

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Underwear Bomber Sentenced to Consecutive Life Terms

As expected, a federal judge in Detroit today sentenced Umar Farouk Abdulmutallab, aka the Underwear Bomber and Captain Underpants, to life in prison for his failed attempt to blow up a Northwest Airlines flight en route to Detroit on Christmas Day in 2009. Since the federal system has no parole, a life sentence means exactly that.

“The defendant has never expressed doubt or regret or remorse about his mission... “To the contrary, he sees that mission as divinely inspired and a continuing mission.” [Judge Nancy Edmonds] said she can't control his motives, but she can control his opportunity.

She ordered the life sentences to be served consecutively. As he was led out of the courtroom, he said, "G-d is Great."

In Abdulmutallab's statement to the Court, he ranted against Jews (see below for quotes): [More...]

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