A New Yorker's Analysis of the Politics Behind the 9/11 Trials

In the New Yorker this week, Jane Mayer analyzes the politics - and the tension - behind the debate on the Administration's decision to try the perpetrators of the 9/11 terrorist attacks in federal courts.

Human Rights First's President and CEO Elisa Massimino looks beyond the politics, emphasizing:

Politically, these issues are poisonous. That’s what Rahm Emanuel is looking at. You can’t finesse it, and you can’t spin it. The President just has to lead the American people away from fear.

Mayer rightly points to the fact that the Bush Administration itself tried more terrorists in federal courts than in military commissions:

For all the tough rhetoric of the Bush Administration, it prosecuted many more
terror suspects as criminals than as enemy combatants.

Human Rights First's research showed 195 terrorists convicted in federal courts since the 9/11 attacks - compared to 3 in military commissions. Other studies come to similar numbers - read Daphne Eviatar's recent blog explaining the difference in the stats.

Whatever politics are at play, the fact is Guantanamo needs to be closed. If you haven't signed our petition yet, sign today, and help us send that message to the White House. They could use your support.

Iranian leaders use violence and manipulate legal system to quell opposition

By Neil Hicks
Crossposted from Jurist

The leaders of the Islamic Republic know well the value of violence and brutality as political control mechanisms. In recent months, the authorities have unleashed random beating of protesters, arbitrary detention and torture, apparently including rape of detainees, running down protesters with motor vehicles, shooting with live ammunition into crowds of unarmed demonstrators resulting in fatalities, and apparent targeted killings. The recent executions of two young men, Mohammed Reza Ali Zamani and Arash Rahmanipour, after legal proceedings that violated Iranian law as well as international standards, and the threat, encouraged by hardliners like Ayatollah Jannati, the Chair of the Council of Guardians, to execute more alleged protesters, are a piece of this long-established strategy of state terror to quell dissent.

But the authorities are trying to achieve more through the earlier show trials and these recent exemplary executions. Not only do they wish to sow fear and deter further protest, they also hope to take control of the narrative of the post-election protests that have produced the deepest political crisis in Iran since the early years of the Islamic Republic.

Leaders of the opposition movement like presidential candidates, Mir Hossein Mousvai and Mehdi Karroubi, and former president Mohamed Khatami, have sought to characterize the opposition as the true defenders of the Islamic Republic and of the constitutional and democratic values that were the aspirations of some of its founders. The color of the opposition is Islamic green; the opposition does not hesitate to claim Muslim holy days as occasions to advance its cause and there is a contest over who can claim the legacy of the late founder of the Islamic Republic, Ayatollah Khomeini. There is some irony, and not a little justice, in the spectacle of Khomeini's flexibility and chameleon qualities – traits that he used ruthlessly to outwit and outmaneuver his one time leftist and liberal democratic allies in the overthrow of the monarchy and to secure his grip on power – now being used by the opposition to challenge the absolute authority of the office of Leader of the Islamic Republic that he created for himself.

To counter this narrative the authorities are anxious to demonstrate that the opposition has no legitimacy, is subservient to foreign interests and that its prime instigators are unpopular violent opposition groups. Prior to his execution, Arash Rahmanipour confessed to his role in plotting post-election protests on behalf of the People's Mojahedine of Iran, an organization associated with acts of political violence and terrorism in Iran, much derided among Iranians for having sided with Saddam Hussein against Iran in the Iran-Iraq war. In fact, Rahmanipour seems to have been a confused young man who had only slight contact with the PMOI and no involvement whatsoever in the post-election protest movement. (He had, in fact, been in prison since March 2009, three months before the elections even took place.) Zamani was convicted of being a member of an obscure organization supportive of the restoration of the monarchy and also has no connections to the opposition movement. The authorities seem to be operating on the principle that if a lie is repeated often enough and loud enough, people will come to believe it.

Time will tell whether the opposition will be cowed by these crude tactics. The anniversary of Khomeini's triumphant return to Iran and the creation of the Islamic Republic 31 years ago is fast approaching. There will be further protests to mark this occasion and the authorities will again make the calculation of how much violence is needed to contain them. Opposition leaders are emphasizing that the forces that made the revolution were strengthened when the Shah's security agencies used excessive force against demonstrators and were swept aside by public outrage. There are no doubt arguments among historians as to whether that is an accurate description of events three decades ago; even more unknown is whether that history will repeat itself in 2010 with the regime's brutal overreach sowing the seeds of its own downfall.

Gillibrand, Baldwin Send Letter to Clinton: Help LGBT Refugees

Today Senator Kirsten Gillibrand and Congresswoman Tammy Baldwin took a first step to help LGBT individuals fleeing violence or persecution in Iraq, Iran, and other countries. In a letter to Secretary Clinton, signed by 42 of their colleagues, they urged that a number of measures be implemented to ensure that LGBT refugees are able to seek asylum safely and that when needed their resettlement is expedited.

The press release quotes Human Rights First's Eleanor Acer, director of our Refugee Protection program:

Today, these Members of Congress have presented a comprehensive set of recommendations that will help ensure the protection of individuals who flee persecution based on their sexual orientation or gender identity only to face further persecution and violence in the countries they have fled to in search of safe refuge. We praise their leadership on this issue, and urge the administration to implement these measures including a fast-track resettlement process for individuals facing serious protection risks.

Read a recent analysis of the plight of LGBT refugees by Human Rights First's Jesse Bernstein, in the Huffington Post.

Senator Gillibrand stated, "it is time for us in Congress to take a strong stand against all hate crimes and persecution - wherever they occur." Human Rights First tracks trends in hate crimes and is working to strengthen and enforce hate crime laws throughout North America, Europe, and Russia, where violent hate crime is on the rise. Join us and see how you can help.

Terrorist Prosecutions By the Numbers

By Daphne Eviatar, Senior Associate, Law & Security

In reporting recently that Umar Farouk Abdulmutallab, the so-called underwear bomber, was actually providing useful intelligence to the FBI, Rachel Maddow on her MSNBC show noted that more than 300 terrorists were convicted in the civilian U.S. court system by the Bush administration. She cited statistics obtained from the Department of Justice.

As many people know, Human Rights First published a thorough and widely-cited report in 2008 on those successful terrorist convictions. Yet our updated report, issued last year, cited only 195 terrorists convicted. So what accounts for the different numbers?

In fact, both are true – as is an NYU Center on Law and Security report that recently found that more than 500 suspected terrorists have been convicted in the civilian justice system since September 11, 2001. It all just depends on what you’re counting.

Human Rights First took the most conservative approach. Relying on two respected former federal prosecutors in New York with experience trying terrorism cases, we wanted to see how many cases the courts have handled specifically related to radical self-described Islamic or “Jihadist” terrorism, such as al Qaeda, since that’s where the public debate has focused. So the former prosecutors – James Benjamin, now a partner at the highly-respected law firm of Akin Gump Strauss Hauer & Feld, and the other, Richard Zabel, now head of the criminal division in the U.S. Attorney’s office of the Southern District of New York – analyzed just that.

But there are other violent terrorist groups out there, such as the Revolutionary Armed Forces of Colombia (the FARC) and the Tamil Tigers. Prosecutions of their leaders and supporters raise similar concerns about the need to obtain important intelligence information and to protect classified evidence and the identity of certain witnesses. According to a Justice Department spokesman, the Department’s statement that more than 300 terrorists were convicted in U.S. courts during the Bush administration therefore includes those prosecutions, since they also represent the Justice Department’s experience and expertise in handling these complex and sensitive cases.

The NYU numbers, meanwhile, are even broader. In its recently-released report, the Center for Law and Security looked at all cases since the terrorist attacks of September 11, 2001 that the Justice Department initially described as terrorist-related. Many of those suspects were not charged under terrorism-related statutes, however, but charged with fraud or immigration violations instead. That was part of an initial post-9/11 strategy to get potential terrorists off the streets before they could attack, even if the government did not have sufficient evidence of terrorist connections to secure a conviction. Increasingly, the government has moved away from that strategy and charged suspected terrorists with terrorism-related crimes.

So the numbers just depend on what you’re counting. But the main point – regardless of how many hundreds of convictions we’re talking about – is that the Department of Justice has proven itself time and again to be well-equipped to interrogate terrorist suspects, investigate terrorism plots and prosecute complex terrorism cases. Military commissions, by contrast, have not: they’ve only convicted three terrorists so far, two of whom have already been released from prison.

The recent hysteria about how we shouldn’t be giving constitutional rights to non-U.S. citizens is a red herring. (It’s also worth noting, as Glenn Greenwald explained in an excellent post on Salon on Monday, that the Constitution requires according foreigners detained in the U.S. Constitutional rights – as the Supreme Court ruled as far back as 1886 and recently reaffirmed in its decision in Boumedienne v. Bush.)

Not only does the U.S. Constitution confer those rights, but based on the experience of our own time-tested federal justice system, sound national security policy demands it.

This post has been updated.

Andy McCarthy’s Analysis Doesn’t Add Up

By Gabor Rona
International Legal Director

Andy McCarthy is playing 3 Card Monte, and not very well, at that. His thesis appears to be that the highly respected Human Rights First report, In Pursuit of Justice, is inflating (or in his words, "cooking the books" on) the number of successful terrorism prosecutions in federal courts.

The report, co-authored by experienced former federal prosecutor Jim Benjamin and (now) chief of the criminal division of the Manhattan U.S. Attorney’s office, Rich Zabel, meticulously details the many criminal cases involving international terrorism that the federal courts have successfully handled since 9/11. It busts several myths that McCarthy and others have been peddling to slander the federal courts, such as "they can’t protect classified evidence" and "they can’t handle cases that arise in a context of armed hostilities."

McCarthy attacks the report’s conclusion that federal courts have convicted 195 individuals in international terrorism-related cases since 9/11. He says this number is "false and an exercise in hypocrisy." In the same breath, he notes that "report does not claim that 195 international terrorists have been convicted. Rather, it says that 195 defendants have been convicted so far in 119 cases that have some connection, however attenuated, to terrorism."

So which is it Mr. McCarthy, are we lying because we claim that all 195 were "international terrorists" or because we do not claim that they were all "international terrorists?" You can’t have it both ways.

Fact is, there’s one thing Mr. McCarthy gets right. It’s that many of these convictions were, as the report claims, of individuals "with some connection" to international terrorism. Mr. McCarthy seems to suggest that since not all of these convictions were of Osama bin Ladens and for the crime of mass murder, it somehow diminishes the claim that federal courts are proper venues for such cases. Huh? Seems that if Mr. McCarthy were truly interested in bringing terrorism’s hangers-on to justice instead of trying to make political hay out of thin air – and if he were supportive of the use of the criminal justice system to thwart the next terrorist attack, rather than just punish the last one – he would speak glowingly of the fact that such individuals can be prosecuted under a vast menu of crimes that are within federal jurisdiction, including "material support" for terrorism, as well as false statements, financial fraud, and immigration fraud.

His complaint about the resolution of the al Marri case is another bait-and-switch exercise. He doesn’t like the sentence al Marri received. But his complaint is not about federal courts vs. other options, it’s about the fact that al Marri pled guilty to "material support" instead of some other charge that McCarthy thinks would have merited a tougher sentence. If Mr. McCarthy thinks federal prosecutors mishandled the case by allowing this plea bargain, he should focus his criticism on them, not on the use of federal courts, and make his case for the alternative of military commission trials (see below)..

What really galls Mr. McCarthy, though, is not that federal courts have done well in prosecuting those in supporting roles for international terrorism. It’s that they’ve also done well in prosecuting the few major players that have been caught. McCarthy declines to mention the Moussaoui case, the Shoe Bomber, the First World Trade Center bombing case – all successful federal court prosecutions of the kinds of people Mr. McCarthy would put into the "real terrorist’ category. This, it seems, does not accord with his preference for bringing such cases in the discredited, dysfunctional military commissions which in their eight years of on-again/off-again existence, have managed to convict only 3 people, 2 of whom are now free.

In a grand finale that is meant to bring us to the barricades, Mr. McCarthy warns of the Christmas bomber being prosecuted for an immigration violation instead of attempted murder (seems he simply has not seen the indictment: attempted use of weapon of mass destruction, attempted murder, willful attempt to destroy aircraft, placing a destructive device on an aircraft, illegal possession of a destructive device) and of KSM being accorded due process that his victims will never again enjoy. The point being what exactly? Should murder suspects not be accorded trials? Whatever the unspoken details of Mr. McCarthy’s proposed alternative to federal prosecution might be, to hamstring law enforcement is a radical proposal that flies in the face of crucial counter-terrorism victories of the past decade. Every single terrorism suspect arrested in the United States during the Bush administration after September 11 was initially held under federal civilian criminal law. More than 200 terror suspects have been interrogated by the FBI and tried in civilian courts since 9/11, including Richard Reid, the "shoe bomber," who is now serving a life sentence. Vital actionable intelligence can–and has–been obtained from terrorism suspects after they’ve been arrested as criminal suspects. Interrogation of terrorism suspects after criminal arrest has resulted in vital intelligence information that has saved American lives. Such terrorism suspects have given information about al-Qaida sleeper cells within the United States, training camps in Afghanistan, and details about high-level terrorism suspects such as Khalid Sheik Mohammed. Umar Farouk Abdulmutallab, the suspected Christmas day bomber, who was appropriately questioned before he was Mirandized, provided valuable intelligence and is now reportedly cooperating with investigators. On the other hand, detainees in military custody in the United States and tried before U.S. military commissions are also entitled to a legal representation, limiting any alleged advantage for interrogations conducted in military custody.

Andy McCarthy is an experienced federal prosecutor. He could put his knowledge to much better uses than knocking down straw man arguments and sowing counterproductive discord that impedes consensus on efforts to prevent further attacks and hold terrorists accountable. Please Andy, let us all instead put an end to the fear-mongering and rancorous cacophony that continues to divide us.

Feinstein Calls For Critical Army Field Manual Review

By Daphne Eviatar, Senior Associate, Law and Security

In a letter to the New York Times published on Saturday, Senator Dianne Feinstein (D-Calif.) recommends that the Pentagon review whether the portion of the Army Field Manual that governs the interrogations of “unlawful enemy combatants” should continue to allow the use of “separation” – actually, a form of extreme and potentially abusive isolation – as an interrogation technique.

That’s a great idea, and one that’s long overdue.

As former military interrogator Matthew Alexander explained in an op-ed in the Times on January 21, to which Senator Feinstein was responding, “extended solitary confinement is torture, as confirmed by many scientific studies.” Senator John McCain (R-Ariz.), who wrote about his experience as a prisoner of war in Vietnam, has described the extreme isolation he suffered as “an awful thing” that “crushes your spirit and weakens your resistance more effectively than any other form of mistreatment.” The Nobel prize-winning group Physicians for Human Rights has similarly said that the sort of isolation allowed by the field manual for interrogation purposes may “amount to psychological torture.” It’s called on the Obama administration to revoke Appendix M, which authorizes the technique, and review its contents with human rights organizations.

Human Rights First, in its Blueprint for the Special Task Force on Interrogation and Transfer Policies issued last year, similarly warned that Appendix M of the Army Field Manual risks treatment "known to result in severe psychiatric harm in violation of domestic and international law" and called for a single interrogation standard to apply to all detainees in armed conflict.

We’re not talking here about separating a detainee from other terrorism suspects to prevent collusion or to allow an interrogator to confront one detainee with another’s statements. Those are logical and lawful tactics. But the sort of extreme isolation that Appendix M allows is ultimately designed to “break” detainees mentally. That’s unlawful and inhumane. And it doesn’t produce reliable information.

Although the Army Field Manual limits the first instance of a detainee’s isolation to 30 days, that period can easily be extended simply by the approval of a military general. Based on his military interrogation experience, Alexander predicts that “there will be numerous waivers to even that minuscule requirement.”

Appendix M allows for other forms of abuse as well, such as sleep deprivation, by saying that detainees in isolation must be allowed "four hours of continuous sleep every 24 hours." That still allows for repeated back-to-back 20-hour interrogations.

Although Senator Feinstein isn’t on board with all of Alexander’s criticisms of the field manual, this is the first time that she’s acknowledged that Appendix M allows for the abuse of detainees and should be reconsidered.

She should now use her leadership on the Senate Intelligence Committee to urge the administration to do just that.

Keep America Afraid

You may have heard that Liz Cheney’s group – Keep America Safe -- decided to respond to the State of the Union address by producing an ad that outrageously suggests that Americans should be afraid of bringing terrorist suspects to justice.

Read about how she has her facts wrong here.

And watch our video:



(Please be advised that the linked content may not be appropriate for all viewers. Especially those who fear scary, scary things like courts and judges.)