Tag Archives: civil liberties

Gitmo Detainee Explains Why He’s on Hunger Strike

by Abe Johnson Posted on May 4, 2013

Mother Jones

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Obaydullah, a detainee at Gitmo who was first captured in Afghanistan in 2002, filed a declaration in federal court in March that was unsealed and posted by the national security blog Lawfare on Friday. The declaration goes into striking detail about the circumstances that Obaydullah (who goes by one name) says provoked the hunger strike at the detention camp, which began in February and now involves 100 out of the 166 remaining detainees, according to the Pentagon’s count.

“In response to the dehumanizing searches, the confiscation of our personal items, and the desecration of the holy Quran, I and the men at Camp 6 and some at Camp 5, waged a hunger strike on Feburary 6 2013,” the declaration reads. “But our strike continues because conditions have gotten worse, not better, and there is no hope that we will ever leave here.”

The declaration corroborates the descriptions of Gitmo defense attorneys who have said that although the hunger strike began as a response to what the detainees saw as desecration of their holy books, it has now grown into a protest of the Obama administration’s policy of indefinite detention. According to Obaydullah, conditions had improved until the February “shake down” that he says provoked the strike. In response, Obaydullah says, the guards began to interrupt detainees’ prayers and moved detainees to more restrictive conditions. Access to recreational facilities was limited and, according to Obaydullah, camp authorities deliberately began to lower the temperature in Camp 6 to the point of “freezing.” “All of these actions showed me and the other prisoners that camp authorities were treating us the way we were treated in the years under President Bush,” Obaydullah writes.

In his declaration, Obaydullah hints at what the detainees would require to end the three-month protest. “We plan to remain on strike until we are treated with dignity, the guards stop trying to enforce old rules, our prayer and religion are respected, and our Qurans are handled with the care and sanctity required.”

Obaydullah has been challenging his detention for years with little success. Although he maintains he was never a fighter for Al Qaeda or the Taliban, a federal judge concluded in 2010 that the evidence against him “unmistakably supports the conclusion that it is more likely than not that petitioner Obaydullah was in fact a member of an al Qaeda bomb cell committed to the destruction of U.S. and Allied forces,” and was therefore lawfully detainable.

“I am losing all hope because I have been imprisoned at Guantanamo for almost 11 years now and I still do not know my fate,” Obaydullah concludes.

Here’s the full declaration:

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Obaidullah Declaration (PDF)

Obaidullah Declaration (Text)

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Gitmo Detainee Explains Why He’s on Hunger Strike

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The 10 Worst Prisons in America: Tent City

by Andrew Brentford Posted on May 3, 2013

Mother Jones

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Tent City is Joe Arapaio’s baby Jack Kurtz/ZumaPress.com

Part 3 in an 11-part series.


#1: ADX (federal supermax)


#2: Polunsky Unit (TX Death Row)


#3: Tent City Jail (Phoenix)

Read the complete introduction to our 10 Worst Prisons project.

Serving time in prison is not supposed to be pleasant. Nor, however, is it supposed to include being raped by fellow prisoners or staff, beaten by guards for the slightest provocation, driven mad by long-term solitary confinement, or killed off by medical neglect. These are the fates of thousands of prisoners every year—men, women, and children housed in lockups that give Gitmo and Abu Ghraib a run for their money.

While there’s plenty of blame to go around, and while not all of the facilities described in this series have all of the problems we explore, some stand out as particularly bad actors. We’ve compiled this subjective list of America’s 10 worst lockups (plus a handful of dishonorable mentions) based on three years of research, correspondence with prisoners, and interviews with criminal-justice reform advocates concerning the penal facilities with the grimmest claims to infamy.

We will be rolling out profiles of all of the contenders in the coming days, complete with photos and video. Our third contender you’re probably already familiar with, thanks to a proudly defiant boss who takes pride in humiliating his heavily Latino jail population, and pinching pennies at the expense of their humane treatment.

3] Tent City Jail (Phoenix, Arizona)

Number of prisoners: ~2,000

Who’s in charge: Joe Arpaio, warden and sheriff of Maricopa County

The basics: No jail is more closely associated with its jailer than Tent City, the 20-year-old brainchild of Maricopa County’s infamous tough-guy sheriff Joe Arpaio. In 1993, to save the county the cost of building a new jail, Arpaio set up hundreds of Army surplus tents from the Korean War era and used them to house prisoners. Tent City residents now number more than 2,000, most of them awaiting trial. (See this county press release (PDF) for an event celebrating its 20th year.) The tents are unheated in winter and uncooled in summer—temperatures inside them have been clocked as high as 145 degrees. A few permanent buildings suffice for showers and meals, and a guard tower displays a permanent “vacancy” sign, warning passersby to stay in line. Arpaio himself has called the place a “concentration camp,” while Tent City’s prisoners have gone so far as to cobble together a survival guide.

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The 10 Worst Prisons in America: Tent City

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The 10 Worst Prisons in America: Polunsky

by sssaa Posted on May 2, 2013

Mother Jones

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Last stop for condemned Texans. Minutes Before Six

Editor’s note: This is part 2 of an 11-part series. Click here for the complete introduction.

Serving time in prison is not supposed to be pleasant. Nor, however, is it supposed to include being raped by fellow prisoners or staff, beaten by guards for the slightest provocation, driven mad by long-term solitary confinement, or killed off by medical neglect. These are the fates of thousands of prisoners every year—men, women, and children housed in lockups that give Gitmo and Abu Ghraib a run for their money.


#1: ADX


#2: Polunsky

Read an introduction to this project here.

While there’s plenty of blame to go around, and while not all of the facilities described in this series have all of the problems we explore, some stand out as particularly bad actors. We’ve compiled this subjective list of America’s 10 worst lockups (plus a handful of dishonorable mentions) based on three years of research, correspondence with prisoners, and interviews with criminal-justice reform advocates concerning the penal facilities with the grimmest claims to infamy. We will be rolling out profiles of all of the contenders in the coming days, complete with photos and video.

Our subjective ranking was based on three years of research, correspondence with prisoners, and interviews with reform advocates concerning the penal facilities with the grimmest claims to infamy. Now, as promised, let’s head on down to Texas to visit our second contender, where condemned men (even severely mentally ill ones) spend their final years under what are arguably the nation’s harshest death-row conditions.

2] Allan B. Polunsky Unit, a.k.a. death row (Livingston, Texas)

Number of prisoners: ~300

Who’s in charge: Richard Alford, former warden at Polunksy, he now oversees all the region’s prisons; Oliver Bell, chairman, Texas Board of Criminal Justice

A typical cell at Polunsky. Minutes Before Six

The basics: “The most lethal death row anywhere in the democratic world” is also probably “the hardest place to do time in Texas,” writes Robert Perkinson, author of the book TexasTough. Indeed, the all-solitary Allan B. Polunsky Unit houses condemned Texans under some of the nation’s harshest death row conditions. The prisoners are housed in single cells on 22-hour-a-day lockdown, and even during their daily “recreation” hour, they are confined in separate cages. With no access to phones, televisions, contact visits, they remain in essentially a concrete tomb (PDF) until execution day—a stretch of at least three years for the mandatory appeals, and far longer if they opt to keep fighting. Some have been known to commit suicide or waive their appeals rather than continue living under such conditions.

The backlash: At Polunsky, the “emotional torture” of awaiting death in total isolation is “driving men out of their minds,” former prisoner Anthony Graves told senators last year at the first-ever Judiciary Committee hearing on solitary confinement. “I would watch guys come to prison totally sane and in three years they don’t live in the real world anymore,” recalled Graves, who was exonerated in 2010, after spending more than 18 years on death row.

Graves detailed for the senators some of the profoundly erratic behavior of his fellow prisoners. “I know a guy who would sit in the middle of the floor, rip his sheet up, wrap it around himself, and light it on fire. Another guy…would take his feces and smear it all over his face as though he was in military combat.”

Listen: Click on the arrow for audio of M*A*S*H* actor Mike Farrell reading our essay, “How Crazy Is Too Crazy to be Executed?”

This man, Graves added, was ruled competent for execution. While on the gurney, “he was babbling incoherently to the officers, ‘I demand that you release me soldier, this is your captain speaking.’ These were the words coming out of a man’s mouth, who was driven insane by the prison conditions, as the poison was being pumped into his arms.”

Another prisoner, a paranoid schizophrenic named Andre Thomas, scooped out his eye and ate it during his stay at Polunsky. He, too, remains on track for execution. It is perhaps no wonder that Dallas insurance executive Charles Terrell asked to have his name removed from the facility after it became death row.

Watch: Anthony Graves’ Senate testimony:

Coming tomorrow: A facility with a “pervasive culture of discriminatory bias against Latinos.”

Research for this project was supported by a grant from the Investigative Fund and The Nation Institute, as well as a Soros Justice Media Fellowship from the Open Society Foundations. Additional reporting by Beth Broyles, Valeria Monfrini, Katie Rose Quandt, and Sal Rodriguez.

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The 10 Worst Prisons in America: Polunsky

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The 10 Worst Prisons in America: ADX

by um2rnxc Posted on May 1, 2013

Mother Jones

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The “Alcatraz of the Rockies.” Bacote et al. v. Federal Bureau of Prisons

“If you can’t do the time, don’t do the crime.” So goes the old saying. Yet conditions in some American facilities are so obscene that they amount to a form of extrajudicial punishment.

Doing time is not supposed to include being raped by fellow prisoners or staff, beaten by guards for the slightest provocation, driven mad by long-term solitary confinement, or killed off by medical neglect. These, however, are the fates of thousands of prisoners every year—men, women, and children housed in lockups that give Gitmo and Abu Ghraib a run for their money.

The United States boasts the world’s highest incarceration rate, with close to 2.3 million people locked away in some 1,800 prisons and 3,000 jails. Most are nasty places by design, aimed at punishment and exclusion rather than rehabilitation; while reliable numbers are hard to come by, at last count 81,622 prisoners were being held in some form of isolation in state and federal prisons. Thousands more are being held in solitary at jails, deportation facilities, and juvenile-detention centers. Nearly 1 in 10 prisoners is sexually victimized, by prison employees about half of the time—more than 200,000 such assaults take place in American penal facilities every year (PDF), according to estimates compiled under the federal Prison Rape Elimination Act. Suicides, meanwhile, account for almost a third of prisoner deaths, per the Bureau of Justice Statistics, while an unknown number of fatalities result from substandard nutrition and medical care.

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The 10 Worst Prisons in America: ADX

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Four Republicans Who Don’t Understand the Constitution They’ve Sworn to Defend

by heloltiki554 Posted on April 29, 2013

Mother Jones

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Members of Congress swear an oath to defend the Constitution of the United States, but that doesn’t mean they understand it. Over the past week, several Republican lawmakers have expressed outrage over the fact that Dzhokhar Tsarnaev, the surviving suspect in the Boston marathon bombings, was read his rights and reportedly stopped talking to interrogators. These GOPers have accused President Barack Obama of making a grave error by recognizing the constitutional rights of a suspected terrorist.

The Obama administration, however, didn’t have a choice in the matter. Tsarnaev was read his rights by a magistrate judge during an initial appearance that was required by the federal rules of criminal procedure, which are rooted in the constitutional right to due process under the law. The Supreme Court has held that, barring exigent circumstances, a criminal suspect has to be brought before a judicial officer within 48 hours, give or take, at which point the suspect is informed of his rights no matter what.

The interrogation priorities of law enforcement officials don’t count as exigent circumstances, because the point of the rule is to prevent secret detention and to inform suspects of the charges against them. The public safety exception to reading suspects their rights affects whether suspects’ statements can be used in court. It does not affect the requirement that a suspect see a judge within 48 hours. These Republicans don’t seem to understand that distinction.

Rep. Peter King (R-NY): The former chairman of the House homeland security committee told CNN the fact that Tsarnaev was read his rights was “disgraceful” and said “It is the matter of life and death. I don’t know of any case law which says that magistrate has a right to come in to a hospital room and stop an interrogation.” Rep. King, let me Google that for you.

Senator Dan Coats (R-Ind.): On CNN’s “State of the Union” Sunday, Coats said that he “was very surprised that they moved as quickly as they did. We had, I think, legal reasons and follow-up investigative reasons to drag this out a little bit longer…I think the AG, attorney general, should have sent a signal basically saying we’re within our legal bounds in doing this for the public safety exemption.” This seems to be a popular misconception. Again, the public safety exception affects the admissibility of statements in court. It does not magically eliminate a suspect’s constitutional right to a speedy trial.

Rep. Michael McCaul (R-Texas): Rep. McCaul is the current chairman of the House homeland security committee, and a former federal prosecutor, so it’s difficult to believe he doesn’t know the federal rules of criminal procedure. “The only other avenue we had to get this intelligence is through this emergency exception to the Miranda warning,” McCaul told CNN. “But in my judgment, the FBI was cut short in their interrogations when the magistrate judge decided to Mirandize him within 16 hours…I think that cost us dearly in terms of valuable intelligence.” Yes, that’s a former federal attorney mangling not only the nature of the public safety exemption and the requirement to bring the suspect before a judge, but also constitutional separation of powers. The FBI does not get to tell judges when they should see suspects.

Rep. Mike Rogers (R-Mich): Probably the only thing more embarrassing than being a federal prosecutor who doesn’t understand the federal rules of criminal procedure is being a former FBI agent who doesn’t understand them. Enter Rep. Rogers, chair of the House intelligence committee, who in an interview with MSNBC last week slammed the judiciary for “interceding” in an interrogation, referring to Tsarnaev being read his rights as “confusing” and a “horrible, God-awful policy” that is “dangerous to the greater community.” It’s not that confusing: The public safety exemption does not allow interrogators to indefinitely detain and interrogate suspects in violation of their constitutional rights.

Senator Lindsey Graham (R-S.C.) has gone a different route and argued that Tsarnaev should have been held in military detention as an “enemy combatant.” But federal law specifically defines those who can be detained militarily as individuals who are play an operation role in foreign terrorist groups like Al Qaeda, and so far the evidence indicates the Tsarnaevs acted alone. It’s also possible that holding an American citizen like Tsarnaev in military detention after apprehending him on US soil would be unconstitutional even if some tie to foreign terrorist organizations were discovered.

Dzhokhar Tsarnaev is accused of doing horrible things. But he is an American citizen who is entitled to all the rights due him under the Constitution, none of which would mean anything if the government could pick and choose when they apply. Then they wouldn’t be rights at all.

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Four Republicans Who Don’t Understand the Constitution They’ve Sworn to Defend

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Law Professor John Yoo Apparently Unaware of Federal Rules of Criminal Procedure

by Aaron Dempsey Posted on April 26, 2013

Mother Jones

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p.mininav-header-text background-color: #000000 !importantMore MoJo coverage of the 2013 Boston Marathon bombings


How the FBI in Boston May Have Pursued the Wrong “Terrorist”


READ: Here Are the Federal Charges Against Boston Bombing Suspect Dzhokhar Tsarnaev


The 11 Most Mystifying Things the Tsarnaev Brothers Did


What We Know About the Tsarnaev Brothers’ Guns


What These Tweets Tell Us About Dzhokhar Tsarnaev


Stunned Reactions From Former Classmates of Dzhokhar Tsarnaev


Did Boston Bombing Suspect Post Al Qaeda Prophecy on YouTube?


Boston Marathon Bombing Suspect Charged With Using WMD

Torture memo author John Yoo and others who have called for Boston marathon bombing suspect Dzhokhar Tsarnaev to be held in military detention are claiming vindication following reports that Tsarnaev stopped talking to interrogators after a judge advised him of his right to remain silent.

“Apparently the FBI interrogated the younger Tsarnaev for 16 hours,” wrote torture memo author John Yoo at National Review. “And then, for reasons that are still unknown, the government read him his rights.”

Yoo has never met a right he didn’t want to ball up like a piece of paper and toss into a trash can in the name of national security. But despite being an attorney and professor at the prestigious University of California Berkeley School of Law, Yoo is either misleading his readers about why Tsarnaev was read his rights or unaware of a basic legal rule.

The judge appeared at the hospital because the Federal Rules of Criminal Procedure state that suspects have to be brought before “a magistrate judge, or before a state or local judicial officer” and it must be done “without unnecessary delay.” The Supreme Court has held that, absent exigent circumstances or the suspect waiving the right to go before a judge—as wannabe Times Square bomber Faisal Shahzad reportedly did—a suspect has to appear before a judge within 48 hours of being apprehended. This is usually referred to in legal shorthand as “presentment,” as in, “presentment before a judge.”

“In practice, this means that law enforcement officers usually have no more than 48 hours to interrogate suspects without informing them of their rights, and usually far less,” explains Steve Vladeck, a law professor at American University School of Law. “Once presentment occurs, the judge, if not the interrogating officers, will advise the suspect of all of his rights.”

That’s what happened in this case. Tsarnaev’s interrogators didn’t read him his rights. Nor did the “Obama administration,” as some, including Sen. Dan Coats (R-Ind.), have claimed. A judge did it. The 48-hour rule exists to prevent the government from detaining people secretly and without a suspect knowing the charges against them. Needing to interrogate a suspect is not included in the exigent circumstances that can be used to justify delaying bringing the suspect before a judge. And the government could not have legally placed Tsarnaev in military detention, either, because absent evidence of concrete operational connections between Tsarnaev and Al Qaeda or its affiliates it would not be legal to do so—and it might not be constitutional even if it were technically legal.

“This is a rule of law issue, and it’s also an effectiveness issue,” says Hina Shamsi, an attorney with the ACLU. “Calls to do an end-run around constitutional rights are not just wrong they prevent a fair and effective prosecution.”

The feds have every reason to play this one by the book. Few things could compound the tragedy of Boston like jeopardizing Tsarnaev’s prosecution because of a rush to trample his constitutional rights.

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Law Professor John Yoo Apparently Unaware of Federal Rules of Criminal Procedure

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Obama Poised to Deliver Another Blow to Whistleblower Protections

by Ivan Nutter Posted on April 24, 2013

Mother Jones

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The Obama administration entered the White House pledging to be the most transparent in history. Since then, the administration has hit more national-security whistleblowers, who are arguably in a position to expose the worst abuses of government power, with the Espionage Act than all previous administrations combined, often lumping them in with criminal leakers and spies.

But Obama defenders point out that, thanks to the president’s Whistleblower Protection Enhancement Act, other types of federal whistleblowers have gained unprecedented protections, including compensation in successful cases and stronger penalties against retaliatory managers. Now that silver lining could vanish, a casualty of a lengthy legal battle between whistleblower advocates and several government agencies.

The case, Berry v. Conyers, involves Obama’s Office of Personnel Management and two Department of Defense employees, neither occupying a high-level or particularly sensitive position: One did stockroom management and the other was an accounting technician (basically a bookkeeper). Both employees were deemed ineligible to access classified or sensitive information, and as a result, the stockroom manager was demoted to grocery clerk, and the bookkeeper was indefinitely suspended. The workers took their cases separately to the Merit Systems Protection Board (MSPB), an independent government board created under the Civil Service Reform Act in 1978 to ensure federal workers are hired and fired based on merit, and to protect federal whistleblowers.

In August, the appeals court ruled 2-1 that even though the Defense employees’ jobs were “noncritical sensitive” positions—roles where an employee doesn’t necessarily have access to classified information, but could still potentially “damage…national security”—their positions are ineligible for review by the MSPB, the main avenue of recourse for civil servants who say they’ve been wrongfully terminated.

The ruling effectively expanded the definition of nat-sec workers to include potentially thousands of additional federal employees—even those whose jobs have nothing to do with classified information—leaving them unable to access key civil-service protections in a whistleblower case. Traditionally, only employees charged with safeguarding the country’s deepest secrets, like FBI and CIA agents, have been denied this kind of appeal. Tom Devine, legal director at the Government Accountability Project, says that under the ruling, these employees won’t even be able to hire a private attorney and file a civil suit, because “as a rule, they can’t go to court except to appeal Board rulings.” (The exception is if an employee can prove they were let go due to discrimination based on race, gender, age, or other categories under Equal Employment Opportunity law. But that won’t help whistleblowers.)

“With this case, all ‘sensitive’ employees will virtually lose the right to defend themselves against charges of misconduct,” Devine notes.

The court cited a 1988 Supreme Court decision involving a laborer at a naval facility who was fired after being denied a national-security clearance. The court ruled that the MSPB couldn’t review his case since it involved national-security concerns, just like the ruling in Berry v. Conyers. In that case, however, clearance was a requirement for the laborer’s job. That apparently wasn’t the case for the employees in Conyers. As the dissenting judge in Conyers pointed out, “The employees’ positions here required no such access, and the employees in question had no security clearances. Far from supporting elimination of Board jurisdiction in such circumstances, the 1988 case explicitly recognized that these national security employees could challenge their removal before the Board.”

The majority disagreed, saying the eligibility of defense employees to occupy sensitive positive should be the agency’s call, and not for the courts to second guess. The sole dissenting judge said in his opinion that the ruling leaves “hundreds of thousands of federal employees” out in the cold in the face of retaliatory measures, simply because the Pentagon says so. (The Department of Justice did not respond to request for comment from Mother Jones about the case.)

The federal appeals court granted another hearing on May 24, and the Obama administration rushed out a memo asking the Director of National Intelligence and the Office of Personnel Management to quickly come up with a litmus test for deciding which federal positions can be classified as being “sensitive,” citing a 2010 OPM proposal that aimed to dramatically expand the number of national security employees.

Whistleblower advocates say the court ruling and the president’s memo spell a major rewiring of the Whistleblower Protection Enhancement Act. “It’s not that OPM and DOJ are arguing that whistleblowers in sensitive positions shouldn’t have access to protections. It’s an unintended consequence that they have not tried to prevent,” says Angela Canterbury, public policy director at the Project on Government Oversight, where I used to work. “The Obama administration is undermining the same protections they formerly supported.”

Meanwhile, there’s some good news for would-be whistleblowers and their allies: the Office of Special Counsel, which investigates retaliation against whistleblowers, has entered Berry v. Conyers. “We have to give credit to the administration for appointing Special Counsel Carolyn Lerner, who is a well-known advocate for whistleblower protections,” Canterbury says. Lerner filed a brief siding with MSPB last month, the first time OSC has done so. “This case is critical to federal whistleblower rights and protections,” says Ann O’Hanlon, a spokeswoman for the office. “Upholding the initial ruling could undermine decades of congressional efforts to strengthen whistleblower protections.”

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Obama Poised to Deliver Another Blow to Whistleblower Protections

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Charts: How Much Danger Do We Face From Homegrown Jihadist Terrorists?

by Andrew Karolitz Posted on April 24, 2013

Mother Jones

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p.mininav-header-text background-color: #000000 !importantMore MoJo coverage of the 2013 Boston Marathon bombings


How the FBI in Boston May Have Pursued the Wrong “Terrorist”


READ: Here Are the Federal Charges Against Boston Bombing Suspect Dzhokhar Tsarnaev


The 11 Most Mystifying Things the Tsarnaev Brothers Did


What We Know About the Tsarnaev Brothers’ Guns


What These Tweets Tell Us About Dzhokhar Tsarnaev


Stunned Reactions From Former Classmates of Dzhokhar Tsarnaev


Did Boston Bombing Suspect Post Al Qaeda Prophecy on YouTube?


Boston Marathon Bombing Suspect Charged With Using WMD

Perhaps the most unusual thing about the Boston Marathon bombing is that it happened at all. While we’ve seen all manner of terrorist bomb plots since September 11—the Times Square bomber, the underwear bomber, even the guys who fantasized about destroying the Sears Tower—all have been thwarted by the FBI, the perpetrators’ own bumbling, or both. If one or both of the suspects in last week’s attack, Tamerlan and Dzhokhar Tsarnaev, were motivated by radical Islamic beliefs, then they will have the dubious distinction of being the first domestic jihadists to have set off a bomb on American soil since the 1993 World Trade Center bombing.

While America has been fixated on the threat of Islamic terrorism for more than a decade, all but a few domestic terror plots have failed. Between September 11, 2001, and the end of 2012, there were no successful bomb plots by jihadist terrorists in the United States. Jihadists killed 17 people in the United States in four separate incidents during this time, according to data collected by journalist Peter Bergen and the New America Foundation. All four of these incidents involved guns, including Nidal Hassan’s shooting rampage at Fort Hood, which killed 13 people. In contrast, right-wing extremists killed 29 people during those 11 years.

The jihadists’ record as bomb makers would probably be even worse if not for the FBI, which has reeled in dozens of would-be terrorists with its controversial informant program. Of the 203 jihadist terrorists counted by the New America Foundation, just 23 got their hands on explosives or materials to make a bomb; more than half of those obtained the components (often nonfunctioning) from federal informants or agents as part of a sting. Of the 174 nonjihadists, 51 right-wing terrorists and 5 anarchist terrorists tried making bombs. Only five of the right-wing terrorists got their bomb-making supplies via sting operations.

Using a slightly different methodology than Bergen, Brian Michael Jenkins of the RAND Corporation also found that “homegrown” jihadist terror plots have had little success. Most post-9/11 plots, he writes, most “never got beyond the discussion stage, and most of those that did were stings in which the FBI provided fake bombs.” A Mother Jones examination of the cases of more than 500 defendants charged in terrorism-related cases after 9/11 found that 31 percent were nabbed in a sting, while 10 percent were lured by an informant who controlled the conspiracy. Perhaps one reason the Tsarnaev brothers’ alleged plot went as far as it did was that they did not seek out collaborators, avoiding tipping off the FBI—which had already checked out Tamerlan but apparently decided not to investigate him.

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Charts: How Much Danger Do We Face From Homegrown Jihadist Terrorists?

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Rand Paul Agrees Tsarnaev Is No ‘Enemy Combatant’

by graptorm Posted on April 23, 2013

Mother Jones

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It hasn’t made as many headlines as his marathon filibuster over drones, but Monday Senator Rand Paul (R-Ky.) told Fox Business host Neil Cavuto Monday that he supports trying Boston Marathon bombing suspect Dzhokhar Tsarnaev in court rather than holding him as an “enemy combatant.”

Here’s the transcript of their exchange (emphasis added):

PAUL: Well, you know, I want to congratulate law enforcement for getting and capturing these terrorists, first of all. But, what we do with them, you know. I think we can still preserve the Bill of Rights. I see no reason why our Constitution is not strong enough to convict this young man with a jury trial, with the Bill of Rights, we do it to horrible people all of the time, rapists and murderers. They get lawyers, they get trials with juries. And we seem to be able to do a pretty good job of justice. So I think we can do it through our court system.

CAVUTO: All right, so the whole, enemy combatant thing is a moot point for you. The fact is that an American citizen will be served American justice. And will get — he will get, if guilty, his just deserts.

PAUL: You know, when I talk to our young soldiers, and my wife and I have been working, we’re trying to build houses for some of these wounded veterans, who’ve really sacrificed their bodies literally, they tell me they are fighting for the Constitution and the Bill of Rights, and I believe them. And I know that that’s what they represent, I think they are disheartened to think, oh, we’re going to just tell people, oh, no jury trial any more. So I think it is something worth standing up for.

Law enforcement has yet to turn up any evidence of an operational connection between the Tsarnaev brothers Al Qaeda or its affiliates. Without such evidence, holding Tsarnaev as an “enemy combatant” is probably illegal. Paul’s support for the Obama administration’s decision to try Dzhokhar in criminal court without holding him in military detention first has not received much attention. That may be because Paul also suggested that immigration from Chechnya should be restricted in the wake of the marathon attacks.

The Tsarnaev brothers are of Chechen descent. But they emigrated to the US from Dagestan, not Chechnya. Tamerlan was 15 and Dzhokhar was eight. Presumably they hadn’t yet begun planning to bomb the Boston Marathon.

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Rand Paul Agrees Tsarnaev Is No ‘Enemy Combatant’

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Sorry, Lindsey Graham, Dzhokhar Tsarnaev Is No "Enemy Combatant"

by pwdt8w4 Posted on April 22, 2013

Mother Jones

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Update: White House press secretary Jay Carney said Monday afternoon that Dzhokhar Tsarnaev would not be held as an “enemy combatant.” President Barack Obama has previously stated that he “will not authorize the indefinite military detention without trial of American citizens.” The US Attorney’s Office-District of Massachusetts confirms that “Dzhokar Tsarnaev is charged with conspiring to use weapon of mass destruction against persons and property in the U.S. resulting in death.”

Before Dzhokhar Tsarnaev, the surviving suspect in the attack on the Boston Marathon, was even captured, Sen. Lindsey Graham (R-S.C.) wanted the the 19-year-old be held in indefinite military detention as an “enemy combatant.”

“If captured, I hope the Obama Administration will at least consider holding the Boston suspect as enemy combatant for intelligence gathering purposes,” Graham tweeted last Friday. In an interview with the New York Times‘ Charlie Savage over the weekend, Graham, who is up for reelection in 2014, elaborated on his reasoning:

You can’t hold every person who commits a terrorist attack as an enemy combatant, I agree with that. But you have a right, with his radical Islamist ties and the fact that Chechens are all over the world fighting with Al Qaeda—I think you have a reasonable belief to go down that road, and it would be a big mistake not to go down that road. If we didn’t hold him for intelligence-gathering purposes, that would be unconscionable.”

Graham is wrong. The government cannot hold Dzhokhar Tsarnaev as an enemy combatant. Under current law, the fact that Tsarnaev shares an ethnicity and religion with other extremists is insufficient grounds to detain him militarily. The 2012 National Defense Authorization Act, which Graham vocally supported, defines as eligible for military detention “a person who was a part of or substantially supported Al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” There’s no evidence yet that the suspects in the Boston bombing acted with the support of or at the behest of Al Qaeda, the Taliban, or associated forces. Unless that evidence emerges, it wouldn’t be legal to hold Tsarnaev as an enemy combatant, even if he and his brother were motivated by extremist religious beliefs.

“It’s actually not a close question,” says Ben Wittes, a scholar with the Brookings Institution and writer at the national security blog Lawfare who supports military detention under some circumstances. “‘Substantially support’ is a reference to providing some material aid to the forces of the enemy…It means giving active aid to the enemy forces, it doesn’t mean taking independent action that happens to be congenial for them.”

Even if evidence emerges that the suspects in the Boston bombing acted with the support of or at the behest of a foreign group, the Supreme Court has not settled whether the military can detain people who are apprehended in the United States. Both the Bush and Obama administrations dodged potential Supreme Court cases that would have decided that question, precisely because the odds are good that holding someone suspect of a crime who is arrested on American soil in military detention is unconstitutional. Having the military detain someone captured on US soil could also jeopardize prosecution: In the three cases where Americans or legal residents have been held in military detention, those suspects got lighter sentences than they probably would have otherwise, Wittes says.

Graham has said he wants Tsarnaev held in military detention so the suspect won’t “lawyer up.” In other words, Graham would like to deprive Tsarnaev of his constitutional rights before he’s even been charged with a crime, let alone convicted of one.

“We live in a system where there’s a Sixth Amendment,” says Wittes. “There’s a reason why we have that right, and I can’t do anything about it and I don’t want to.”

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Sorry, Lindsey Graham, Dzhokhar Tsarnaev Is No "Enemy Combatant"

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