ACLU taps top legal talent to defend accused 9-11 plotters

The American Civil Liberties Union, which for years has scorned Pentagon military commissions as "kangaroo courts,'' announced Friday that it will try to provide top civilian defense attorneys for alleged terrorists facing trial at Guantanamo Bay, Cuba — including the alleged mastermind of the Sept. 11, 2001, terrorist attacks.

Former Attorney General Janet Reno is among top lawyers who've endorsed the $8.5 million effort, which will help coordinate and defray the expenses of civilian defense attorneys working on the terrorism cases. Under the military commissions scheme, the Pentagon won't reimburse volunteer civilian attorneys for their expenses.

ACLU Executive Director Anthony Romero said a major thrust of the effort will be to defend Khalid Sheik Mohammed, who military officials say has confessed to masterminding the 9-11 attacks and several other terrorist acts, including the beheading in Pakistan of Wall Street Journal correspondent Daniel Pearl.

The ACLU chose to focus on Mohammed's defense, Romero said, because he appears to be "the government's top priority in the prosecution. And whether or not they are able to convict Khalid Sheik Mohammed under these rules may well determine the fate of the almost 300 other men who are detained at Guantanamo.''

Mohammed was held in secret CIA custody until September 2006, and the CIA has admitted subjecting him to waterboarding while he was being questioned. Waterboarding is simulated drowning and is considered torture by many rights advocates.

Mohammed's case "is likely to raise the most significant issues of torture, hearsay evidence and access to counsel,'' Romero said.

At the Pentagon, a war court spokesman said the Office of Military Commissions hadn't received details about the ACLU program.

But Air Force Capt. Andre Kok noted that the law governing the trials entitles each Guantanamo defendant to a military defense lawyer and that volunteer civilian attorneys can also participate, without government reimbursement.

"The system allows for that,'' said Kok. "There's a mechanism set in place for them to become part of that pool of qualified attorneys.''

Romero said 11 lawyers have agreed to defend Guantanamo detainees facing death penalty charges under the program, which the ACLU has dubbed "The John Adams Project'' after the second president of the United States, who as an attorney was subjected to ridicule for defending British soldiers accused of killing colonists in the 1770 Boston Massacre.

Because the prisoners have been cast by the White House as the most reviled enemies of America, the ACLU and the National Association of Criminal Defense Lawyers issued endorsements of the effort from high-profile lawyers, including one from Reno, who served as President Clinton's attorney general for both of his terms and is the longest-serving attorney general in U.S. history.

"This is the time to demonstrate to the world that the United States need not abandon its principles,'' said Reno, "even as it seeks to ensure the safety of its citizens.''

The program described Friday is the result of a stealthy collaboration between the ACLU, the National Association of Criminal Defense Lawyers and uniformed U.S. military lawyers.

On Feb. 11, the Pentagon prosecutor filed proposed death-penalty charges against Mohammed and five other men as alleged co-conspirators in the 9-11 attacks.

Since then Army Reserves Col. Steve David, who is the commissions' chief defense counsel, has been trying to build teams of military attorneys qualified to handle the complicated death penalty cases from the mostly inexperienced military judge advocates general assigned to his office.

David, an Indiana judge in civilian life, has said that he wants to meet American Bar Association standards in the cases — meaning assigning 12 government lawyers, six investigators and six paralegals. At the same time, the defense JAGs have been attending ABA death-penalty training classes.

The military commissions' legal advisor, Brig. Gen. Thomas Hartmann, has said that the military commissions are not obliged to follow ABA standards.

Among those who've volunteered to defend the 9-11 conspirators are Idaho attorney David Nevin, whose previous cases include the successful defense of a Saudi charged with terrorism; New York attorney Joshua Dratel, who defended clients charged with the 1993 bombing of the World Trade Center prosecutions; and Denise LeBoeuf, a prominent New Orleans death penalty defense attorney.

Romero said a noted death-penalty lawyer has agreed to defend Mohammed before the military commission — if he's allowed to see Mohammed in private at the remote Guantanamo U.S. naval base and Mohammed agrees to accept his services.

Romero declined to name the attorney, but said that the lawyer had already applied for the high-level security clearance required to meet with Mohammed, who is held in seclusion at the base.

"The only way you can protect the system from being a complete sham is to make sure that they have a good defense,'' said Jennifer Daskal of Human Rights Watch, who also has been a commission observer. "And one way to do that is to have strong, zealous experienced lawyers.''

Romero said the ACLU decided to champion the defense effort in response to the recent acceleration of military commission prosecution efforts, which some have said are timed for the 2008 campaign season

Bomb parts at U.S. airport could have exploded: FBI

ORLANDO, Florida (Reuters) - The liquid packed in an Air Jamaica passenger's suitcase could have caused a disastrous explosion if it had ignited in mid-air, an FBI agent said on Thursday at a hearing for a man charged with trying to take bomb parts on a plane.

"If the appropriate heat source was introduced, absolutely" the nitromethane could have ignited, FBI agent Kelly Boaz testified at a hearing for Kevin Brown.

The 32-year-old Jamaican man was arrested at Orlando International Airport on Tuesday as he prepared to check his luggage for a flight to Montego Bay, Jamaica.

The FBI said the suitcase contained two galvanized pipes, end caps with holes drilled in them, two prescription bottles containing air gun pellets, a model rocket igniter, batteries, lighters, lighter fluid and two plastic vodka bottles of nitromethane, a liquid used as an industrial solvent and race car fuel.

Assistant U.S. Public Defender Clarence Counts argued that the liquid and other bomb components, which Boaz acknowledged were unassembled and packaged separately, did not endanger the flight.

"None of these items, your honor, were packaged in such a way that they would explode," Counts argued. "We did not have a bomb."

U.S. Magistrate Karla Spaulding sided with prosecutors and let stand the charge against Brown of attempting to put an explosive or incendiary device on an aircraft.

Brown was returned to the Seminole County Jail where he is being held without bond because Counts, without explanation, waived the scheduled bond hearing.

Afterward, Counts would only say he would reschedule a bond hearing for Brown "if circumstances change."

Brown was stopped at the airport by officers who said he acted suspiciously while preparing to check his bag. He variously told Boaz that he planned to explode a tree stump on his cousin's land in Jamaica, and that he wanted to show his friends the kind of improvised explosive device he had seen while serving in Iraq.

Newspaper reports said Brown was a U.S. Army veteran who had worked for a military contractor in Iraq last year and who had struggled with depression since the murder of his mother in 2005. His lawyer declined to comment on that.

Pentagon Releases DOJ Torture Memo

WASHINGTON - The Pentagon made public a now-defunct legal memo that approved the use of harsh interrogation techniques against terror suspects, saying that President Bush's wartime authority trumps any international ban on torture.

The Justice Department memo, dated March 14, 2003, outlines legal justification for military interrogators to use harsh tactics against al-Qaida and Taliban detainees overseas - so long as they did not specifically intend to torture their captives.

Even so, the memo noted, the president's wartime power as commander in chief would not be limited by the U.N. treaties against torture.

"Our previous opinions make clear that customary international law is not federal law and that the president is free to override it at his discretion," said the memo written by John Yoo, who was then deputy assistant attorney general for the Office of Legal Counsel.

The memo also offered a defense in case any interrogator was charged with violating U.S. or international laws.

"Finally, even if the criminal prohibitions outlined above applied, and an interrogation method might violate those prohibitions, necessity or self-defense could provide justifications for any criminal liability," the memo concluded.

The memo was rescinded in December 2003, a mere nine months after Yoo sent it to the Pentagon's top lawyer, William J. Haynes. Though its existence has been known for years, its release Tuesday marked the first time its contents in full have been made public.

Haynes, the Defense Department's longest-serving general counsel, resigned in late February to return to the private sector. He has been hotly criticized for his role in crafting Bush administration policies for detaining and trying suspected terrorists that some argue led to prisoner abuses at the detention center in Guantanamo Bay, Cuba.

Yoo's memo became part of a debate among the Pentagon's civilian and military leaders about what interrogation tactics to allow at overseas facilities and whether U.S. troops might face legal problems domestically or in international courts.

Also of concern was whether techniques used by U.S. interrogators might someday be used as justification for harsh treatment of Americans captured by opposing forces.

The Justice Department has opened an internal investigation into whether its top officials improperly authorized or reviewed the CIA's use of waterboarding, which simulates drowning, when interrogating terror suspects. It was unclear whether the Yoo memo, which focuses only on military interrogators, will be part of that inquiry.

The declassified memo was released as part of an American Civil Liberties Union lawsuit to force the Bush administration to turn over documents about the government's war on terror. The document also was turned over to lawmakers.

Justice Department spokesman Brian Roehrkasse said its release "represents an accommodation of Congress' oversight interest in the area of wartime interrogations."

Jameel Jaffer, director of the ACLU's national security project, said Yoo's legal reasoning puts "literally no limit at all to the kinds of interrogation methods that the president can authorize."

"The whole point of the memo is obviously to nullify every possible legal restraint on the president's wartime authority," Jaffer said. "The memo was meant to allow torture, and that's exactly what it did."

The 81-page legal analysis largely centers on whether interrogators can be held responsible for torture if torture is not the intent of the questioning. And it defines torture as the intended sum of a variety of acts, which could include acid scalding, severe mental pain and suffering, threat of imminent death and physical pain resulting in impaired body functions, organ failure or death.

The "definition of torture must be read as a sum of these component parts," the memo said.

The memo also includes past legal defenses of interrogations that Yoo wrote are not considered torture, such as sleep deprivation, hooding detainees and "frog crouching," which forces prisoners to crouch while standing on the tips of their toes.

"This standard permits some physical contact," the memo said. "Employing a shove or slap as part of an interrogation would not run afoul of this standard."

The memo concludes that foreign enemy combatants held overseas do not have defendants' rights or protections from cruel and unusual punishment that U.S. citizens have under the Constitution. It also says that Congress "cannot interfere with the president's exercise of his authority as commander in chief to control the conduct of operations during a war."

Senate Judiciary Committee Chairman Patrick Leahy said the memo "reflects the expansive view of executive power that has been the hallmark of this administration." He called for its release four months ago.

"It is no wonder that this memo ... could not withstand scrutiny and had to be withdrawn," said Leahy, D-Vt. "This memo seeks to find ways to avoid legal restrictions and accountability on torture and threatens our country's status as a beacon of human rights around the world."

Gitmo Prisoner Charged in ’98 Embassy Attack

SAN JUAN, Puerto Rico - A Guantanamo detainee who allegedly helped plan the 1998 bombing of the U.S. Embassy in Tanzania that killed 11 people was charged Monday with war crimes that carry a possible death penalty.

Ahmed Kalfan Ghailani - who was held in secret CIA custody before being transferred in 2006 to the U.S. military prison in Cuba - also allegedly purchased and transported the explosives used in the attack and scouted the embassy with a suicide bomber.

Al-Qaida's twin suicide truck-bomb attacks on the U.S. Embassies in Tanzania and Kenya on Aug. 7, 1998, killed some 236 people, including 12 Americans, and injured more than 4,000. No Americans died in the attack in Dar Es Salaam, Tanzania.

U.S. Air Force Brig. Gen. Thomas Hartmann told a Washington news conference that Ghailani, a Tanzanian, faces charges that include murder, attacking civilians and terrorism. The attack on the embassy in Tanzania was not as devastating as the one in Kenya because an embassy water tanker apparently prevented the suicide bomber from penetrating the perimeter.

Ghailani, who was captured after a gunbattle in Gujrat in eastern Pakistan in July 2004, told a military panel at Guantanamo in March 2007 that he unwittingly delivered the explosives for the attack, didn't know about it beforehand and was sorry.

"It was without my knowledge what they were doing, but I helped them," he told the panel, according to a transcript released by the Pentagon. "So I apologize to the United States government for what I did. And I'm sorry for what happened to those families who lost, who lost their friends and their beloved ones."

A senior Pentagon legal official, Susan Crawford, must review and approve the filed charges before any legal proceedings can begin against Ghailani.

The U.S. has so far filed charges against 15 prisoners at Guantanamo and convicted one, Australian David Hicks, in a March 2007 plea bargain. Several detainees have appeared before the tribunal for arraignments or pretrial hearings. The first actual trials are expected to begin in late spring or early summer.

The U.S. now holds about 275 men at Guantanamo and military officials say they expect to file war crimes charges against about 80.