D.C. Circuit Validates Indefinite Detention For Enemy Combatants

The detainee lobby loses another round in court, this time a habeas corpus petition on behalf of Ghaleb Nassar Al-Bihani, apparently a cook for the Taliban who carried a weapon but never fired it in combat:

A federal appeals court Tuesday endorsed the government's sweeping authority to detain terrorism suspects whom it can link to al-Qaeda, the Taliban and affiliated groups.

The ruling by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit upheld a lower court's decision in 2008 that the government may continue to detain a Yemeni, an admitted cook for a group allied with the Taliban. The prisoner, Ghaleb Nassar al-Bihani, has been held at the U.S. military facility at Guantanamo Bay, Cuba, since 2002.

The decision would make it more difficult for some detainees to win release through federal lawsuits challenging their confinements because it so strongly backs the government's authority, legal experts said.

"This is a big win for the government," said Robert Chesney, a national security law professor at the University of Texas.

Two of the judges on the three-judge panel were George W. Bush appointees: Janice Rogers Brown and Brett Kavanaugh. "Viewed in full, the facts show Al-Bihani was part of and supported a group—prior to and after September 11—that was affiliated with Al Qaeda and Taliban forces and engaged in hostilities against a U.S. Coalition partner. Al-Bihani, therefore, falls squarely within the scope of the President’s statutory detention powers," the court wrote.

Court Denies Moussaoui Appeal

9/11 conspirator Zacarias Moussaoui is staying in jail for the duration:

A federal appeals court on Monday upheld the conviction and life prison term of Zacarias Moussaoui, the only person convicted in a U.S. court in connection with the Sept. 11, 2001, terrorist attacks.

The U.S. Court of Appeals for the 4th Circuit rejected an effort by Moussaoui's lawyers to send the case back to federal court in Alexandria, where he pleaded guilty in 2005 to an al-Qaeda conspiracy to crash planes into U.S. buildings that led to the attacks on the World Trade Center and Pentagon. After a two-month sentencing trial in Alexandria, Moussaoui was sentenced to life in prison.

Attorneys for Moussaoui had told the Richmond-based court that he should be retried or resentenced because he was deprived of his constitutional rights. The Justice Department argued that the proceedings were fair.

Writing at NationalReviewOnline, former federal prosecutor Andrew McCarthy says the U.S. dodged a bullet in the court ruling, and only because of the defendant's guilty plea:

...if [Moussaoui] had not surprised everyone by pleading guilty, if he had instead insisted on proceeding with his trial (not just the penalty phase but the guilt phase), the case might well have ended disastrously.

...The appellate court notes that Moussaoui claims it was error for the trial judge to interfere with his unqualified right to represent himself; "to have personal, pretrial access to classified, exculpatory evidence"; and to be able to summon witnesses like co-conspirator Khalid Sheikh Mohammed for trial testimony. The Fourth Circuit acknowledges that all these claims have merit, but the court finds that Moussaoui, by pleading guilty, waived any claim of prejudice...Even more alarming, the Fourth Circuit concedes that its waiver rationale is inconsistent with a decision by the Ninth Circuit on which Moussaoui relies — i.e., if the Fourth Circuit had followed the Ninth Circuit, there's a good chance it would have had to agree that, regardless of the guilty plea, Moussaoui's convictions should be reversed.

The Fourth Circuit also reminds us that the trial judge initially struck the death penalty from the case because the government refused to give Moussaoui access to the al-Qaeda prisoner witnesses. The Fourth Circuit reversed the judge at the time, but on the condition that it would be open to revisiting that conclusion if the government failed to provide Moussaoui with all the classified exculpatory information to which he was entitled. At that critical moment, Moussaoui decided to plead guilty. That is, we never found out what would have happened if Moussaoui had insisted on a trial at which he'd have access to all these witnesses and other national-defense information. The guilty-plea is deemed to have waived any claim by Moussaoui that he was denied the information to which he was entitled.

In the next case — like, say, KSM's civilian trial — the defendants will be smart enough not to plead guilty. They will insist on getting every piece of intelligence they're entitled to. And the prosecutors will look at this ruling on Moussaoui's appeal and realize they'd better give it to them or risk having the case thrown out. That's what the law-enforcement approach buys you.

Now that the Christmas Day Northwest Airlines underwear bomber has lawyered up, what similar legal mischief can we expect by his defense lawyers?

The Obama Passport Caper Revisited

If you happened to be channel surfing on the night that the news broke that someone illegally accessed then-candidate Obama's passport file, you might have noticed that MSNBC was covering the story like it was a combination of Watergate, IranContra, and the death of Elvis. CNN, to its credit, had a more measured coverage. As soon as it came out that the perpetrator had also snooped into Hillary Clinton's and John McCain's file, the story quickly disappeared from all media outlets, including MSNBC. Newsmax is now claiming an Obama supporter (rather than what was presumed to be an opponent) breached the passport records:

Obama’s top terrorism and intelligence adviser, John O. Brennan, heads a firm that was cited in March for breaching sensitive files in the State Department’s passport office, according to a State Department Inspector General’s report released this past Jul

The security breach, first reported by the Washington Times and later confirmed by State Department spokesman Sean McCormack, involved a contract employee of Brennan’s firm, The Analysis Corp., which has earned millions of dollars providing intelligence-related consulting services to federal agencies and private companies.

During a State Department briefing on March 21, 2008, McCormack confirmed that the contractor had accessed the passport files of presidential candidates Barack Obama, Hillary Rodham Clinton, and John McCain, and that the inspector general had launched an investigation.

Sources who tracked the investigation tell Newsmax that the main target of the breach was the Obama passport file, and that the contractor accessed the file in order to “cauterize” the records of potentially embarrassing information.

“They looked at the McCain and Clinton files as well to create confusion,” one knowledgeable source told Newsmax. “But this was basically an attempt to cauterize the Obama file.”

What could possibly be in a candidate's passport file that would be so damaging that an covert operative would need to go in and scrub it? Incidentally, a key witness in this incident was murdered, and the case remains unsolved.