In the case of Yaser Esam Hamdi v. Donald Rumsfeld, the Supreme Court rules 8-1 that, contrary to the government’s position, Hamdi (see December 2001), as a US citizen held inside the US, cannot be held indefinitely and incommunicado without an opportunity to challenge his detention. It rules he has the right to be given the opportunity to challenge the basis for his detention before an impartial court. Justice Sandra Day O’Connor writes for the majority: “It would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.” Hamdi, on the other hand, apart from military interrogations and “screening processes,” has received no process. Due process, according to a majority of the Court, “demands some system for a citizen detainee to refute his classification [as enemy combatant].” A “citizen-detainee… must receive notice of the factual basis for his classification, and a fair opportunity to rebut the government’s factual assertions before a neutral decision-maker.” However, O’Connor writes, “an interrogation by one’s captor… hardly constitutes a constitutionally adequate factfinding before a neutral decisionmaker.”
Conservative Dissent: President Has Inherent Power to Detain Citizens during War – Only Justice Clarence Thomas affirms the government’s opinion, writing, “This detention falls squarely within the federal government’s war powers, and we lack the expertise and capacity to second-guess that decision.” [Supreme Court opinion on writ of certiorari. Shafiq Rasul, et al. v. George W. Bush, et al., 6/28/2004] Thomas adds: “The Founders intended that the president have primary responsibility—along with the necessary power—to protect the national security and to conduct the nation’s foreign relations. They did so principally because the structural advantages of a unitary executive are essential in these domains.” [Dean, 2007, pp. 105]
‘A State of War Is Not a Blank Check for the President’ – The authority to hold Hamdi and other such US citizens captured on enemy battlefields derives from Congress’s Authorization to Use Military Force (AUMF—see September 14-18, 2001). Justice Antonin Scalia dissents from this portion of the majority ruling, saying that because Congress had not suspended habeas corpus, Hamdi should either be charged with a crime or released. The Court also finds that if Hamdi was indeed a missionary and not a terrorist, as both he and his father claim, then he must be freed. While the Court does not grant Hamdi the right to a full criminal trial, it grants him the right to a hearing before a “neutral decision-maker” to challenge his detention. O’Connor writes: “It is during our most challenging and uncertain moments that our nation’s commitment to due process is most severely tested; and it is in these times that we must preserve our commitment at home to the principles for which we fight abroad.… We have long made clear that a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”
Affirms President’s Right to Hold US Citizens Indefinitely – Although the media presents the ruling as an unmitigated defeat for the Bush administration, it is actually far more mixed. The White House is fairly pleased with the decision, insamuch as Hamdi still has no access to civilian courts; the administration decides that Hamdi’s “neutral decision-maker” will be a panel of military officers. Hamdi will not have a lawyer, nor will he have the right to see the evidence against him if it is classified. This is enough to satisfy the Court’s ruling, the White House decides. In 2007, author and reporter Charlie Savage will write: “[T]he administration’s legal team noted with quiet satisfaction that, so long as some kind of minimal hearing was involved, the Supreme Court had just signed off on giving presidents the wartime power to hold a US citizen without charges or a trial—forever.” The Justice Department says of the ruling that it is “pleased that the [Court] today upheld the authority of the president as commander in chief of the armed forces to detain enemy combatants, including US citizens.… This power, which was contested by lawyers representing individuals captured in the War on Terror, is one of the most essential authorities the US Constitution grants the president to defend America from our enemies.” [Savage, 2007, pp. 193-194]
June 29, 2004: Islamist Militant Receives Life Sentence for Policeman’s Murder
After an 11-week trial at the Old Bailey, Kamal Bourgass is sentenced to life imprisonment, with a minimum of 22 years, for murdering DC Stephen Oake during a raid on a flat in Crumpsall Lane, Manchester, as part of the investigation into the alleged ricin plot in north London (see January 5, 2003). The sentence is kept secret due to the impending trial of Bourgass and others for the alleged plot, where Bourgass will only be found guilty on a secondary charge (see April 8-12, 2004). [Independent, 4/17/2005]
June 30, 2004: Several Senators Demand Attorney General Ashcroft Explain Al-Marabh’s Deportation Decision
The Associated Press reports that both Republicans and Democrats have expressed outrage that Nabil al-Marabh was deported in January 2004 (see January 2004). Several senators have written letters to Attorney General John Ashcroft, demanding an explanation. Sen. Charles Grassley (R-IN) states that the circumstances of al-Marabh’s deportation—who was “at one time No. 27 on the [FBI] list of Most Wanted Terrorists”—are “of deep concern and appear to be a departure from an aggressive, proactive approach to the war on terrorism.” Sen. Patrick Leahy (D-VT) wrote to Ashcroft, “The odd handling of this case raises questions that deserve answers from the Justice Department.… Why was a suspected terrorist returned to a country that sponsors terrorism? We need to know that the safety of the American people and our strategic goals in countering terrorism are paramount factors when decisions like this are made.” Sen. Charles Schumer (D-NY) says, “It seems that pursuing a military tribunal, a classified criminal trial, or continued immigration proceedings would have made more sense than merely deporting a suspected terrorist.” Sen. Orrin Hatch (R-UT) has also made inquiries into the case. Prosecutors in several US cities sought to bring criminal cases against al-Marabh and a US attorney in Chicago drafted an indictment against him, which he apparently was not allowed to pursue (see January-2002-December 2002). [Associated Press, 6/30/2004] Apparently, no explanation from Ashcroft is ever given. The 9/11 Commission Final Report, released a couple of months later, will fail to mention al-Marabh at all.
Mid-2004: Pakistani Army Deployment Forces Al-Qaeda to Slightly Move Their Safe Haven
Since being defeated in Tora Bora, Afghanistan, in late 2001, al-Qaeda has made a safe haven in the Pakistani tribal region of South Waziristan (see December 10, 2001 and Late May 2002). But in April 2004, the Pakistani army begins attacking militants there (see March 18- April 24, 2004 and April 24-June 18, 2004). The army is defeated, but rapidly increases its troops in South Waziristan from less than 10,000 militia soldiers based only in the main town before the fighting began to 80,000 throughout the region. As a result, most of the al-Qaeda militants simply move from South Waziristan to North Waziristan. There is no similar increase in troop strength in North Waziristan, so al-Qaeda is able to reestablish a safe haven there. [Rashid, 2008, pp. 274] In February 2005, the army will strike a deal with the remaining militants in South Waziristan and withdraw all its troops from there, allowing al-Qaeda to reestablish themselves there as well (see February 7, 2005).
July-October 18, 2004: Spanish Informant Exposes Plot to Bomb High Court in Madrid
Abdelkader Farssaoui, a.k.a. Cartagena, served as a government informant from late 2001 to June 2003, informing on a group of the Madrid train bombers (see September 2002-October 2003). He continued to work with Spanish authorities, and in July 2004, several months after the Madrid train bombings, he hears about a new Spanish bomb plot. He tells authorities that the plot is being led by a man named Mohamed Achraf, who is leading the effort despite being held in a prison in Switzterland on immigration violations. Achraf’s plan is to blow up the National Justice Building (Audiencia Nacional) in Madrid, using 500 kilos (1,100 lbs) of explosives. He is leading a criminal network and has been raising the money for the explosives through robbery and drug trafficking. He hopes that the bomb will kill judges Baltasar Garzon and Juan del Olmo, who are in charge of investigations against suspected al-Qaeda figures in Spain. He also hopes the destruction of the building will destroy many documents about Islamist militants in Spain. [El Mundo (Madrid), 10/21/2004] Beginning on October 18, 2004, Spain arrests about 30 people who they accuse of involvement in the plot. Achraf will be extradited to Spain to stand trial with the others there. As of early 2008, no verdicts have been reached. [BBC, 10/22/2004; BBC, 10/15/2007]
July 2004: 9/11 Commission Staffers Protest over ‘Whitewash’ of FBI’s Performance before Attacks, Win Minor Changes to Final Report
9/11 Commission staffers that looked at the FBI’s performance prior to the attacks are amazed when they read a draft of the report. The draft recommends almost no changes at the FBI and says that, regarding FBI reforms, “we defer to Director Mueller.” Several staffers go so far as to call this a “whitewash,” as they want an overhaul at the FBI, in particular of its counterterrorist operations. One of the staffers, Caroline Barnes, decides she has to appeal this to the commissioners. However, Executive Director Philip Zelikow does not like staffers talking to the commissioners directly (see March 2, 2003), so Barnes has to make contact with them in a place where Zelikow will not see it. She corners female commissioner Jamie Gorelick in the ladies’ room and tells her the staff are uncomfortable with what the report recommends about the FBI. Gorelick is concerned, and arranges for the whole of the team dealing with the FBI to brief the commissioners before the recommendations are approved. This leads to some minor changes in the final report. The phrase about deferring to the FBI director is edited out, and the commission calls on the bureau to promote the work of counterterrorist agents instead of treating them like second-class citizens. [Shenon, 2008, pp. 403-404]
July 2004: Report on FBI’s 9/11 Failures Is Completed, But Remains Unreleased Until After Presidential Election
In November 2002, as the 9/11 Congressional Inquiry was finishing its investigation, it had formally asked for a report by the Justice Department (which oversees the FBI) to determine “whether and to what extent personnel at all levels should be held accountable” for the failure to stop the 9/11 attacks. An identical request was made to the CIA (see June-November 2004). [New York Times, 9/14/2004] The Justice Department report, titled “A Review of the FBI’s Handling of Intelligence Information Related to the September 11 Attacks,” is completed this month. [Washington Post, 4/30/2005] It centers on three FBI failures before 9/11: the failure to follow up on the arrest of Zacarias Moussaoui in August 2001 (see August 16, 2001), the failure to follow up on FBI agent Ken Williams’ memo (see July 10, 2001) warning about Islamic militants training in US flight schools, and the FBI’s failure to follow up on many leads to hijackers Nawaf Alhazmi and Khalid Almihdhar. The report provides some new details about miscommunications, inaction, and other problems. [New York Times, 9/14/2004] The report remains classified. Senior Senate Judiciary Committee members Patrick Leahy (D-VT) and Charles Grassley (R-IA) call for its release. The senators state, “While the needs of national security must be weighed seriously, we fear the designation of information as classified, in some cases, serves to protect the executive branch against embarrassing revelations and full accountability. We hope that is not the case here.” [Washington Times, 7/12/2004; New York Times, 9/14/2004] One problem complicating the issuing of even a declassified version is the possibility that the material would taint the criminal proceedings against Zacarias Moussaoui. In early 2005, the Justice Department inspector general’s office will ask the judge presiding over Moussaoui’s case for permission to release a declassified version of the report. But the judge will turn down the request in April 2005, even after Moussaoui pleads guilty (see April 30, 2005). The report will finally be released in June 2005 without the section on Moussaoui (see June 9, 2005). [New York Times, 2/13/2005]
Early July 2004: 9/11 Commission Executive Director Zelikow Tries to Prevent Formal Interviews of CIA Analysts who Drafted Presidential Daily Brief about Bin Laden
Richard Ben-Veniste, a Democratic member of the 9/11 Commission, insists that the commission properly interview two CIA analysts who drafted an August 2001 Presidential Daily Brief (PDB) item entitled “Bin Laden Determined to Strike in US” (see August 6, 2001). Ben-Veniste makes the demand after he learns that Commission Executive Director Philip Zelikow interviewed one of the analysts by phone, but allegedly pressured the analyst to back the White House version of events (see June 2004). Initially, Ben-Veniste asks to see transcripts of interviews with the analysts. However, according to author Philip Shenon: “With a condescending tone that reflected his disdain for Ben-Veniste, Zelikow explained matter-of-factly that there weren’t any transcripts…. After months of battles with Zelikow, it was hard for Ben-Veniste to be shocked by almost anything he did. But the staff could see that Ben-Veniste was genuinely startled.” Ben-Veniste’s demand for full interviews is opposed by Zelikow, who says that one of the analysts, known only as Barbara S, has already been interviewed (although it is unclear how much of this interview was focused on the PDB). Zelikow will also say, “The CIA was pleading with us not to do this, since the career people involved in preparing and presenting PDBs would be intimidated, disrupting the sense of confidentiality and candor they considered essential for the PDB process.” However, when they are interviewed, the two analysts seem eager to volunteer the information they have. The commission’s Democratic Vice Chairman Lee Hamilton, who has a record of siding with the Republicans (see Before November 27, 2002 and March 2003-July 2004) fails to back Ben-Veniste before the full commission. Republican Chairman Tom Kean rescues him, pushing through the request for the interviews in the face of opposition from the other Republicans on the commission (see July 13, 2004). [Shenon, 2008, pp. 375-377]
July 1, 2004: Tenet Says CIA Is ‘Increasingly Skeptical’ about Alleged Atta-Iraqi Agent Meeting
In a statement to Congress on July 1, 2004, CIA Director George Tenet doubts that 9/11 hijacker Mohamed Atta met with an Iraqi agent in Prague in April 2001. He says, “Although we cannot rule it out, we are increasingly skeptical that such a meeting occurred.” He adds that Atta “would have been unlikely to undertake the substantial risk of contacting any Iraqi official” at such a date. [New York Times, 7/9/2004]
Between July 1 and July 17, 2004: Small Group of 9/11 Commission Staffers Spend Single Day at NSA, Do Not Have Time to Review All Relevant Material
After 9/11 commission staffer Lorry Fenner discovers material apparently related to 9/11 in files made available to the commission by the NSA (see January 2004), a group of commission staff goes to the NSA to have a look at its archives. The group includes Fenner, as well as Lloyd Salvetti and Doug MacEachin, who have already looked at some of the material (see June 2004). The trip is at the weekend just before the commission is to complete its final report, and the group leaves Washington at 7:00 a.m. and stays “virtually all day.” They are given “huge piles of documents” to review. MacEachin will say: “There were stacks and stacks of paper. I was angry I hadn’t seen this before.” This appears to be the only trip made by the 9/11 Commission to the NSA to review documents and many NSA documents go unseen by the Commission. Author Philip Shenon will write: “[What the commission] staff knew… perfectly well, was that the NSA archives almost certainly contained other vital information about al-Qaeda and its history. But there was no time left to search for it. [Executive director Philip] Zelikow would later admit he too was worried that important classified information had never been reviewed at the NSA and elsewhere in the government before the 9/11 commission shut its doors, that critical evidence about bin Laden’s terrorist network sat buried in government files, unread to this day. By July 2004, it was just too late to keep digging.” [Shenon, 2008, pp. 373]
