by TChris

A court martial may be thwarted by the government's interference with the accused's right to discuss the evidence with his civilian lawyer. The government originally accused Senior Airman Ahmad Halabi of spying for Syria, although it dropped 13 of the original 30 counts, including espionage. The government claims that Halabi, a Syrian-American linguist who had been assigned to the U.S. Naval Base at Guantanamo Bay, tried to deliver messages from detainees to someone in Syria.

Today Halabi asked that the remaining counts (including charges that he mishandled classified information and attempted espionage) be dismissed. Halabi's civilian attorney, Donald Rehkopf Jr., complained that he cannot talk to his client or to Halabi's military attorneys about, and has been barred from seeing, classified evidence.

He also cannot talk with Halabi or the attorneys about such topics as the case of Army Capt. James Yee, who was arrested Sept. 10 on suspicion of espionage but charged with only two counts of mishandling classified information. Yee briefly supervised Halabi when he worked at Guantanamo.

Both the Washington Post and the New York Times have some sharp criticism for the Government's treatment of Guantanamo military chaplain Captain James Yee. From the Times' editorial, Military Injustice:

The damage this case did to Captain Yee is incalculable, but the military has also hurt itself. It has cast further doubt on its detention policies in Guantánamo. It has diminished public confidence in military justice. And it has weakened its own credibility for future cases when it tries to invoke national security. For Captain Yee's sake and its own, the military should apologize for its misguided prosecution and put in place procedures to prevent a case like this from happening again.

Bump and Update: The Washington Post has this article in which the Government claims that the papers were so sensitive it preferred to drop charges rather than allow them to become public at hearings. Yee's lawyer sees it differently:

"Chaplain Yee has won. . . . The Army's dismissal of the classified information charges against him represents a long-overdue vindication. We reject the notion that security concerns played any role in this decision."

So does Sisyphus Shrugged:

The Army had to delay Captain Yee's hearing five times while they tried to figure out whether the papers he held were classified. Now the papers are so classified they'd rather let him get away with stealing them than let anyone read them. I buy this. Sure I do.

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Original Post 3/19 5:35 pm

CNN reports that the U.S. military dismissed all charges Friday against Army Muslim Chaplain James Yee. Details here.

Capt. James J. Yee, the Guantanamo Bay Muslim chaplain spent 76 days in solitary confinement, often in leg irons and manacles prior to his release from custody last December. He was charged with mishandling classified information, adultery with another officer and keeping pornography on his government laptop.

Details of a deal in which the most serious charges would be dismissed were leaked to the media a few days ago. According to CNN, however, the Government dropped all charges.

We think this clears Captain Yee for an honorable discharge. More egg on the Administration's face.

We've seen some criticism of the media's mention that Susan Lindauer, accused of spying for the Iraqis, is related to Bush advisor Andrew Card. Some accounts say they are distant relatives, others say they are second cousins. It's obvious that Card is crucial to the case--he's the one who reported her to authorities:

The indictment said Ms. Lindauer delivered a letter early last year to a United States government official listing her access to and contacts with Saddam Hussein's government. Investigators said the official was Mr. Card, one of President Bush's closest associates and a participant in nearly every high-level Oval Office meeting. White House and law enforcement officials described Ms. Lindauer as either a second cousin or a distant relative of Mr. Card.

....Investigators said Ms. Lindauer had gone to Mr. Card's home in Washington around Jan. 8, 2003, more than two months before Mr. Bush ordered the invasion of Iraq, and dropped off the letter in what the indictment said was "an unsuccessful attempt to influence United States foreign policy." Scott McClellan, the White House spokesman, said that Mr. Card had not seen Ms. Lindauer since around the time of Mr. Bush's inauguration in 2001 but that Ms. Lindauer had tried to reach him a number of times subsequently. Mr. McClellan said Mr. Card "brought to the attention of the appropriate officials the various attempts by her to contact him."

The case sounds like much ado about nothing to us--so far:

Federal law enforcement officials said that despite Ms. Lindauer's extensive contacts with the Iraqis, there was little evidence to suggest that she had harmed national security by passing any sensitive intelligence to the Hussein government. Instead, she was largely perceived, even by some law enforcement officials, as a woman who fancied herself a peacemaker. "She thought maybe she could do more than she really could as an intermediary" between Washington and Baghdad, said a law enforcement official.

by TChris

Don't fret about military tribunals for foreigners accused of aiding and abetting terrorism. Sure, there's no appeal from a tribunal's verdict, and the government gets to listen in when the suspects are eventually given access to lawyers, but not to worry. Foreigners facing the death penalty don't need a full panoply of rights (or any at all, really) because the USA is always fair.

Right. Why should we believe this? Because Donald Rumsfeld says so.

Defense Secretary Donald Rumsfeld on Thursday dismissed criticism of Pentagon's rules for planned trials of foreign terrorism suspects before U.S. military tribunals and said the proceedings will not be "a kangaroo court."

On the other hand, Rumsfeld thinks that it is "appropriate for the United States to hold foreign terrorism suspects at Guantanamo without charges or legal represenation." That sentiment tells us something about the Defense Secretary's understanding of due process.

Detainees from Yemen and Sudan, charged with conspiracy to commit war crimes, will be the first Guantanamo prisoners to be tried before a military tribunal. It isn't clear when the last of the 640 prisoners will be tried, but Rumsfeld acknowledged that some may remain locked up for years.

While Rumsfeld considers it "irresponsible" to suggest that military tribunals are "kangaroo courts," critics say "the rules are rigged to produce convictions, compel guilty pleas, and make it as easy as possible to win the death penalty."

Critics say hearsay evidence and coerced confessions could be admissible under the rules. Even the military lawyers assigned by the Pentagon to represent Guantanamo prisoners during the trials have called the rules fundamentally unfair and hopelessly antiquated, ignoring decades of legal advances since World War II.

by TChris

Terrorism prosecutions in Germany continue to be compromised by the failure of the United States to provide access to witnesses. Last month, a German court acquitted Abdelghani Mzoudi of charges that he aided 9/11 hijackers because the United States would not provide access to witnesses held by the American government. Now a German court has ordered a new trial for the only person convicted for playing a part in the 9/11 attacks.

Defense lawyers for Moroccan citizen Mounir Motassadeq had repeatedly asked for evidence from Ramzi Binalshibh, who is in secret U.S. custody. U.S. officials have called Binalshibh a central conspirator in the attacks, but they declined to produce him for the trial, citing national security concerns.

Motassadeq's conviction of membership in a terrorist organization and accessory to murder was based on evidence that he helped the hijackers stage the attacks by transferring money. Motassadeq denied knowledge of their plans.

The U.S. government's prosecution of Zacarias Moussoui derailed when the government refused to allow him to interview the same witness. It therefore isn't surprising that the U.S. would invoke the same policy to subvert fair trials for defendants in other countries. It is surprising that the U.S. is willing to compromise terrorism prosecutions for the sake of adhering to that misguided policy.

Federal prosecutor James Convertino has filed a whistleblower suit against Attorney General John Ashcroft claiming mismanagement of the Detroit terror trial.

A federal prosecutor in a major terrorism case in Detroit has taken the rare step of suing Attorney General John Ashcroft, alleging the Justice Department interfered with the case, compromised a confidential informant and exaggerated results in the war on terrorism.

Assistant U.S. Attorney Richard Convertino of Detroit accused the Justice Department of "gross mismanagement" of the war on terrorism in a whistleblower lawsuit filed late Friday in federal court in Washington.

We're not jumping on Convertino's bandwagon yet. Convertino has admitted withholding favorable evidence from the defense in the case. Covertino's lawyer, former AUSA William Sullivan, acknowledges that his client intentionally withheld the letter. Sullivan has said he believes that his client made the right decision in not disclosing the letter because it wouldn't have affected the trial's outcome. We strongly disagree. Details here.

Software engineer Maher (Mike) Hawash was sentenced to seven years today for his role in the Oregon 7 terror case.

There were no crowds or demonstrations at Monday's sentencing, but several of his staunchest supporters submitted letters to the court attesting to his good character. A letter from Maher's wife Lisa called the event "an aberration in his otherwise good and generous life. I can look into his eyes and see the sadness and remorse. It is truly genuine."

Hawash, a U.S. citizen for 15 years and apparently a model suburban dad, told the court that he is proud to be an American, recalling his pride when he voting in his first election. He attributed his crime to religious and emotional confusion in the highly charged times after the hijack attacks on the World Trade Center and Pentagon on Sept. 11, 2001, but added, "I do not blame anybody but myself."

Background on Mr. Hawash is here. All of our coverage of his case is accessible here.

Update: Jeff (formerly known as Emma) at Notes on the Atrocities has a local perspective and a last word on Mr. Hawash.

The Pentagon has agreed to relax some of the arduous rules imposed upon private defense lawyers representing defendants in Guantanamo military tribunal proceedings. Among the most significant change is that defense lawyers will not have to sign an affidavit acknowledging that their conversations with their clients may be recorded.

The Pentagon has not dropped its insistence that agents can listen in, but the reworked rules are much more explicit about how the government chooses which suspects, if any, it will monitor, and which government agency will do the monitoring. A defense lawyer would be notified about planned electronic monitoring and could object to it at trial, [Miami Attorney Neal] Sonnett said.

Another big change: The Pentagon will remove the ban on private lawyers receiving help from their home offices or outside counsel in their representation of detainees at military tribunals, even if such lawyers are not on a Pentagon-approved list.

The new rules are not finalized yet, but here is the Pentagon's site on military commissions. You can read what's wrong with the current rules here.

Atrios writes about the Israeli businessman from South Africa, Asher Karni, charged in the U.S. with supplying Pakistan with nuclear weapons detonators and he wonders why it hasn't gotten more coverage. He'll be glad to know there are now 303 articles on the case over at Google News.

We remember it because Karni was arrested at Denver International Airport. A U.S. Magistrate in Denver ordered him released on $75k bail. The Government asked for a reconsideration. The review hearing was held by videotaped conference with Karni appearing with his lawyers in Denver and the Government and Judge in DC where he was charged.

Karni has been a prominent member of the an Orthodox Hebrew Congregation in South Africa for the past 18 years and is an assistant to its rabbi. He is a businessman with tremendous support in the Capetown community.

The case sounds like a set-up to us. He had come to Colorado for a ski vacation with his wife and daughter. Good for the judge for granting bail, although the conditions are extremely stringent--he has to live with a rabbi in Maryland and is on house arrest.

Clearly, Mr. Karni, a devout practicing Jewish man, is not a terrorist member of al-Qaeda.

Here's the latest on who tipped off the authorities.

Update: The terms of the stringent bond for the Israeli citizen Asher Karni are here.

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The Detroit terror convictions that Attorney General Ashcroft was so proud of are spriraling further into treacherous waters. Background here.

The news today is that the government's confidential informant in the case, Marwan Farhat, says that the FBI told him to break the law during the investigation.

In a Jan. 21 letter, written at the airport as he left for an undisclosed foreign country, informant Marwan Farhat said he was asked by FBI Special Agent Robert Pertuso to steal mail from Arab Muslims whom the federal government had identified as terror suspects.

Farhat, of Dearborn, claimed in a six-page letter to Pertuso that the FBI failed to deliver on a promise to give Farhat 25 percent of any money confiscated from the terror suspects. In his letter, Farhat said he received nothing.

“I worked around the clock helping and assisting the government of the United States to put Muslims in jail,” wrote Farhat, who said he assisted the FBI in giving information on scores of Arabs. “My life has been destroyed, abused and used to benefit your interests.”

He handed the letter, which was obtained by The Detroit News, to a U.S. immigration agent as he caught a flight from Detroit Metropolitan Airport on Wednesday. Fearful for his safety, and with the government’s approval, Farhat left the United States days after his identity was publicly revealed.

The military lawyer appointed to represent Australian David Hicks at Guantanamo slams the tribunal rules and says they don't allow for a fair trial.

Maj. Michael Mori, who in November was assigned to be the military attorney for David Hicks -- an Australian held at the U.S. military prison in Cuba -- said the system set up by the Pentagon for trials of non-U.S. citizens captured during what U.S. officials call the war on terror was unfair.

"The military commissions will not provide a full and fair trial," Mori told a news conference. "The commission process has been created and controlled by those with a vested interest only in convictions.... Using the commission process just creates an unfair system that threatens to convict the innocent and provides the guilty a justifiable complaint as to their convictions."

Among the problems with the tribunal rules are these:

... the Pentagon can monitor communications between prisoners and their lawyers, and there is no independent judicial review process. Appeals go only to a special military review panel named by the Pentagon, to the secretary of defense or the president.

Mori said the most "striking injustice" of the system was that commission members, who take the place of an independent judge, do not have the authority to decide issues that could end up in the dismissal of a charge. ... There is no valid reason to create a new justice system only for non-U.S. citizens," he said.

The limitations on defense counsel contained in the tribunal rules --and the denial of due process, attorney-client confidentiality and privilege -- make it impossible for lawyers to provide adequate or ethical representation. By requiring lawyers to agree to the tribunal rules, the lawyer has to contract away his or her client’s rights, including the right to zealous advocacy.