15 years of pretrial hearings for Guantanamo detainees

Prosecutors portrayed the prisoners as unrepentant jihadists who bragged about their roles in the Sept. 11, 2001, attacks to federal agents during their first months in military detention at Guantánamo Bay, reported The New York Times.

Defense lawyers cast the men as so broken by violence and solitary confinement in their years in C.I.A. prisons overseas that they were groomed to involuntarily confess to U.S. agents.

Over eight days this month, the two sides offered these stark, clashing views to a military judge who is now confronted with the overarching question in the long-running capital case: Did Khalid Shaikh Mohammed, who is accused of hatching and organizing the Sept. 11 attacks, and two co-defendants voluntarily incriminate themselves to F.B.I. agents years ago, and can their statements be used against them?

The case is in its 15th year of these pretrial proceedings, and no date has been set for the trial to begin. But the judge’s decision could be a turning point almost 25 years after the attacks killed nearly 3,000 people in New York, Pennsylvania and at the Pentagon.

Stephan Gerhardt, whose brother Ralph was killed in the attack on the World Trade Center, said the judge’s decision would provide “a major step forward as it answers probably the biggest legal question that needs resolution before a trial date being set.”

He watched some of the arguments in the court at Guantánamo this month.

The legal question before the judge is not about the crime itself, the largest terrorist attack ever in the United States. That will be left for a trial.

It is whether the prisoners were so thoroughly conditioned after more than three years of incommunicado detention, which started off with brutality and continued with years of questioning by U.S. government agents, that they involuntarily told their captors what they wanted to hear.

A crux of the question confronting the judge is the legal principle of attenuation, how to get an untainted confession after a coerced one. Prosecutors say the “clean” interrogations at Guantánamo in 2007 met the legal standard of a change in time, change in place and change in identity of questioners.

Transfer to Guantánamo

To make his decision, the judge is reviewing years of testimony and reams of classified evidence managed by four previous judges in the case against Mr. Mohammed, Walid bin Attash and Mustafa al-Hawsawi to decide whether there was a clear moment of attenuation.

Or, as the judge called it, the pivot.

Military judges have so far thrown out the confessions of two other capital defendants, Ammar al-Baluchi and Abd al-Rahim al-Nashiri, because of what the C.I.A. did to them. Prosecutors are appealing to reinstate Mr. Baluchi’s statements.

“Mr. Khalid Shaikh Mohammed could not shut up about his role as the emir of the 9/11 attacks,” the lead prosecutor, Clayton G. Trivett Jr., said on the first day of the hearing. Mr. Trivett said Mr. Mohammed boasted about the attacks to C.I.A. interrogators after he was captured in Pakistan in March 2003 and then to F.B.I. agents at Guantánamo in January 2007.

It was in March 2003 when Mr. Mohammed was in C.I.A. custody that he was waterboarded 183 times. His lawyer, Gary D. Sowards, said that after his client was tortured, he was questioned hundreds of times, sometimes three times a day, by C.I.A. investigators.

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Former CIA director: Russian collusion investigation warranted

The former head of the CIA said he has seen intelligence about interactions between President Donald Trump’s campaign associates and Russian officials that made him believe there was a need for the ongoing FBI investigation into possible collusion, reported The Huffington Post.

“I encountered and am aware of information and intelligence that revealed contacts and interactions between Russian officials and U.S. persons involved in the Trump campaign,” former CIA chief John Brennan told lawmakers on Tuesday during a House Intelligence Committee hearing. By the time he left the CIA on Jan. 20, Brennan continued, he had “unresolved questions” as to whether the Russians were successful in getting Americans “to work on their behalf, again, either in a witting or unwitting fashion.”

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GateHouse: Did the president literally say ‘my wires tapped’?

Matthew T. Mangino

GateHousse Media

March 10, 2017

President Donald Trump has accused his predecessor, former President Barack Obama, of tapping the phone lines at Trump Tower before the November election. The unprecedented accusation has raised a lot of eyebrows in Washington, across the country and around the world.

House Intelligence Chairman Devin Nunes — a Trump supporter and member of Trump's transition team — made a peculiar statement this week, presumably in defense of Trump. He told reporters, "A lot of the things he says (Trump), you guys take literally."

Here is what Trump tweeted Saturday morning at 6:30 a.m.: Terrible! Just found out that Obama had my 'wires tapped' in Trump Tower just before the victory. Nothing found. This is McCarthyism!

Is there anything ambiguous about that statement? Could President Obama have ordered a wiretap of candidate Trump or his campaign headquarters?

In order to legally tap a phone line the government needs a warrant. Obviously, an illegal wiretap — by its very nature — does not involve a warrant.

Why is a warrant required to put a wiretap in place? The U.S. Constitution provides that people should be secure in their homes from unlawful searches. Specifically, the Fourth Amendment provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Founding Fathers did not consider the possibility of electronic communications when they wrote those words.

The U.S. Supreme Court ruled in 1928 that listening in on a phone conversation was not an illegal search because police did not actually enter into the suspect's home. It was not until 1967 that the high court acknowledged that a person on the phone, albeit in a phone booth with the door closed, had a reasonable expectation of privacy.

Today, people have an expectation of privacy in their homes and offices with regard to telephone conversations unless the government obtains a warrant.

How does that work?

The law authorizing federal criminal wiretaps is Title III of the Omnibus Crime Control and Safe Streets Act of 1968. The federal law, as well as the law in all 50 states, requires probable cause.

Probable cause is a reasonable belief that a person has committed or will commit a crime. For probable cause to exist, a law enforcement officer must have sufficient knowledge of facts to warrant a belief that a suspect is committing a crime. The belief must be based on factual evidence, not simply on suspicion.

During a criminal investigation a prosecutor goes before a neutral judge with an affidavit of probable cause and asks for a search warrant. If the judge is satisfied that probable cause exists the warrant is issued.

In a national security case, the FBI and attorneys in the Justice Department's National Security Division prepare a declaration laying out the grounds for seeking an order from the Foreign Intelligence Surveillance Court commonly referred to as the "FISA Court." FISA is a secret tribunal with legal authority to review warrants for electronic surveillance against suspected spies or terrorists.

The FISA Court is made up of 11 federal judges selected by the chief justice of the Supreme Court, serving seven-year terms, reported the Washington Post. The court routinely meets in private and the applications for court orders and the actual orders remain highly classified.

A senior intelligence official, typically the FBI or CIA director, must certify to the court that the purpose is to collect foreign intelligence and that the information cannot be obtained by normal investigative means.

The application must be approved by either the attorney general, the deputy attorney general or the head of the National Security Division.

Missing from the federal criminal court rules and the FISA Court rules is the direct input of the President--because, contrary to the opinion of President Trump--Presidents neither order nor apply for search warrants or wiretaps.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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FBI's Comey: 'There is no such thing as absolute privacy in America'

“There is no such thing as absolute privacy in America,” the FBI director, James Comey, has declared after the disclosure of a range of hacking tools used by the CIA, reported The Guardian.

Comey was delivering prepared remarks at a cybersecurity conference in Boston, but his assessment has deepened privacy concerns already raised by the details of CIA tools to hack consumer electronics for espionage published by WikiLeaks on Tuesday.

 “All of us have a reasonable expectation of privacy in our homes, in our cars, and in our devices. But it also means with good reason, in court, government, through law enforcement, can invade our private spaces,” Comey said at the conference. “Even our memories aren’t private. Any of us can be compelled to say what we saw … In appropriate circumstances, a judge can compel any of us to testify in court on those private communications.”

Fresh concerns over personal privacy arose after WikiLeaks published what it called the first tranche of a larger body of data about CIA hacking, which it says was provided to the organisation by a whistleblower seeking to trigger a debate on the issue.
The Democratic congressman Ted Lieu called for a congressional investigation into how the data came to be stolen and the wisdom of the intelligence agencies in withholding knowledge about vulnerabilities in consumer software from manufacturers.
“If these documents are true, it means the CIA arsenal of cyber weapons is now out there in the public domain, and who knows who now has access to some very intrusive hacking tools,” Lieu told The Guardian. “It is very disturbing to anyone who cares about privacy … It should also put to rest any argument about encryption back doors. You can’t just give encryption keys to the good guys and hope they don’t get to the bad guys. Our best protection is to have no security defects in the products we use.”
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