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National Security Law LGLA 1372 UNIT SIX Military court at GTMO Unit Six 1. Learning Outcomes: Upon successful completion of this unit the student will be able to: • Discuss how the difference between normal criminal actions and national security, crimes and how the courts treat those differences. • Discuss national security trials and the use of secret information. • Discuss the use of military tribunals and commissions 3. Lesson Outline: • Criminalizing terrorism and material support. • Prosecuting accused terrorists and their supporters in criminal courts: ◦ ◦ • The procedural path to terrorism trials. Secret evidence in criminal trials. Trial by military commission. Court room where initial GTMO military commissions convened. Any copyrighted material contained in this lecture, including but not limited to cartoons, drawings, photographs, essays, or other materials, are reproduced herein under the provisions of the Fair Use Doctrine, 17 U.S. Code § 107. REFERENCE NOTICE The recommended reading in this course is: Dycus, Stephen, and Arthur L. Berney, William C. Banks, and Peter Raven-Hansen, National Security Law, Sixth Edition. For purposes of reference only, Unit Six contains material from the chapters 34,35,36, 37 of said book. Note that this book is not a required textbook in this course. In 1998 Osama bin Laden and ayman Al-Swahili issued a fatwa — declaring war on Americans. They wrote: “The judgement to kill Americans and their allies, both civilian and military, is the individual duty of every Muslim able to do so, and in any country where it is possible. We, in the Name of God, call on every Muslim who believes in God and desires to be rewarded, to follow God’s order to kill Americans and plunder their wealth wherever and whenever they find it.” Source: Thompson, Larry D., “Terrorism and the U.S. Criminal Justice System,” Brookings (October 12, 2003), www.brookings.edu/research/speeches/2003/10/12terrorism-thompson Section 1: Criminalizing Terrorism and Material Support Initial Thoughts. • Whether or not one agrees with the construct of a “Global War on Terror,” or believes that military force (and, incidental to it, military detention and military trial) is the principal tool of counterterrorism, a state under the rule of law will also continue to impose criminal sanctions against terrorism. ○ Notwithstanding Congressional efforts to limit the Executive Branch’s options for dealing with detainees at GTMO nor the political perambulations of the Obama Administration concerning GTMO, the question of options more generally is not either/or. It is rather, what is the best mix of these and other tools (immigration law, economic sanctions, civil liability, diplomacy) for combating terrorism? Treason and Sedition. • • • Treason: “Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.” 108 Stat. 2148, 18 U.S. Code § 2381. Sedition: “If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.” 108 Stat. 2148, 18 U,2.S. Code § 2384. See also, “Advocating Overthrow of Government”, 18 U.S. Code § 2385. Reading United States v. Rahman In this case, the Second Circuit considered appeals by ten defendants convicted of seditious conspiracy and other offenses arising out of a wide-ranging plot to conduct a campaign of urban terrorism. Among the activities of some or all of the defendants were rendering assistance to those who bombed the World Trade Center in 1993, planning to bomb bridges and tunnels in New York City, murdering Rabbi Meir Kahane, and planning to murder the President of Egypt. Most significantly for our purposes, the court in Rahman considered the argument that the offenses of “seditious conspiracy” was (1) functionally identical to “treason,” and therefore triggered the heightened protections that Article III of the [U.S.] Constitution creates for treason prosecutions; and (2) violated the First Amendment as applied to speech. As you read the Second Circuit’s rejection of these arguments, consider the following questions: ● What were the key differences between the government’s burden of proof in prosecution of “seditious conspiracy” and its burden in prosecuting “treason”? Why were these differences enough, in the Second Circuit’s view, to avoid triggering the Treason Clause? Are you convinced? ● Where did the Court of Appeals draw the line between constitutionally protected speech and speech that can be appropriately subject to criminal sanction? Why did the Rahman defendants’ speech fall on the wrong side of that line? Is it clear to you when speech inciting acts of terrorism will and will not be protected? Source: Dycus, Stephen, and Arthur L. Berney, William C. Banks, and Peter Raven-Hansen, National Security Law, Sixth Edition (Frederick, MD: Wolters Kluwer, 2016), 1057-1058. ____________________________________________________________________________________________________ Sheik Omar Abdelrahman United States v. Rahman 189 F.3d 88 (2d Cir, 1999) INTRODUCTION These are appeals by ten defendants convicted of seditious conspiracy and other offenses arising out of a wide-ranging plot to conduct a campaign of urban terrorism. Among the activities of some or all of the defendants were rendering assistance to those who bombed the World Trade Center, see United States v. Salameh, 152 F.3d 88 (2d Cir. 1998) (affirming convictions of all four defendants), planning to bomb bridges and tunnels in New York City, murdering Rabbi Meir Kahane, and planning to murder the President of Egypt. We affirm the convictions of all the defendants. We also affirm all of the sentences, with the exception of the sentence of Ibrahim El-Gabrowny, which we remand for further consideration. BACKGROUND Defendants-Appellants Sheik Omar Abdel Rahman, El Sayyid Nosair, Ibrahim El-Gabrowny, Clement Hampton-El, Amir Abdelgani (“Amir”), Fares Khallafalla, Tarig Elhassan, Fadil Abdelgani (“Fadil”), Mohammed Saleh, and Victor Alvarez (collectively “defendants”) appeal from judgments of conviction entered on January 17, 1996, following a nine-month jury trial in the United States District Court for the Southern District of New York (Michael B. Mukasey, District Judge). The defendants were convicted of the following: seditious conspiracy (all defendants); soliciting the murder of Egyptian President Hosni Mubarak and soliciting an attack on American military installations (Rahman); conspiracy to murder Mubarak (Rahman); bombing conspiracy (all defendants found guilty except Nosair and El-Gabrowny); attempted bombing (Hampton-El, Amir, Fadil, Khallafalla, Elhassan, Saleh, and Alvarez); two counts of attempted murder and one count of murder in furtherance of a racketeering enterprise (Nosair); attempted murder of a federal officer (Nosair); three counts of use of a firearm in relation to a crime of violence (Nosair); possession of a firearm with an obliterated serial number (Nosair); facilitating the bombing conspiracy by shipping a firearm in interstate commerce and using and carrying a firearm in relation to a crime of violence (Alvarez); two counts of assault on a federal officer (El-Gabrowny); assault impeding the execution of a search warrant (El-Gabrowny); five counts of possession of a fraudulent foreign passport, and one count of possession with intent to transfer false identification documents (El-Gabrowny). At trial, the Government sought to prove that the defendants and others joined in a seditious conspiracy to wage a war of urban terrorism against the United States and forcibly to oppose its authority. The Government also sought to prove various other counts against the defendants, all of which broadly relate to the seditious conspiracy. The Government alleged that members of the conspiracy (acting alone or in concert) took the following actions, among others, in furtherance of the group’s objectives: the attempted murder of Hosni Mubarak, the provision of assistance to the bombing of the World Trade Center in New York City on February 26, 1993, and the Spring 1993 campaign of attempted bombings of buildings and tunnels in New York City. In addition, some members of the group were allegedly involved in the murder of Rabbi Meir Kahane by defendant Nosair. The Government adduced evidence at trial showing the following: Rahman, a blind Islamic scholar and cleric, was the leader of the seditious conspiracy, the purpose of which was “jihad,” in the sense of a struggle against the enemies of Islam. Indicative of this purpose, in a speech to his followers Rahman instructed that they were to “do jihad with the sword, with the cannon, with the grenades, with the missile . . . against God’s enemies.” Govt. Ex. 550 at 22. Rahman’s role in the conspiracy was generally limited to overall supervision and direction of the membership, as he made efforts to remain a level above the details of individual operations. However, as a cleric and the group’s leader, Rahman was entitled to dispense “fatwas,” religious opinions on the holiness of an act, to members of the group sanctioning proposed courses of conduct and advising them whether the acts would be in furtherance of jihad. According to his speeches and writings, Rahman perceives the United States as the primary oppressor of Muslims worldwide, active in assisting Israel to gain power in the Middle East, and largely under the control of the Jewish lobby. Rahman also considers the secular Egyptian government of Mubarak to be an oppressor because it has abided Jewish migration to Israel while seeking to decrease Muslim births. Holding these views, Rahman believes that jihad against Egypt and the United States is mandated by the Qur’an. Formation of a jihad army made up of small “divisions” and “battalions” to carry out this jihad was therefore necessary, according to Rahman, in order to beat back these oppressors of Islam including the United States. Tr. 2197. Although Rahman did not arrive in the United States until 1990, a group of his followers began to organize the jihad army in New York beginning in 1989. At that time, law enforcement had several of the members of the group under surveillance. In July 1989, on three successive weekends, FBI agents observed and photographed members of the jihad organization, including (at different times), Nosair, Hampton-El, Mahmoud Abouhalima, Mohammad Salameh, and Nidal Ayyad (the latter three of whom were later convicted of the World Trade Center bombing, see Salameh, 152 F.3d at 161), shooting weapons, including AK-47’s, at a public rifle range on Long Island. Although Rahman was in Egypt at the time, Nosair and Abouhalima called him there to discuss various issues including the progress of their military training, tape-recording these conversations for distribution among Rahman’s followers. Nosair told Rahman “we have organized an encampment, we are concentrating here.” On November 5, 1990, Rabbi Meir Kahane, a former member of the Israeli parliament and a founder of the Jewish Defense League, gave a speech at the Marriot East Side Hotel in New York. Kahane was a militant Zionist, who advocated expelling Arabs from Israel. The content of this speech was a plea to American Jews to emigrate and settle in Israel. Nosair and possibly Salameh and Bilal Alkaisi, another member of the group, attended the speech. After the speech, as Kahane stood talking with the crowd, two shots were fired and Kahane was hit in the neck and chest. Nosair, whom witnesses observed with a gun in hand immediately after the shooting, then ran toward the rear door of the room, trailed by one of the onlookers. At the door, 70-year-old Irving Franklin sought to impede Nosair’s flight. Nosair shot Franklin in the leg, and fled the room. Outside the hotel Nosair encountered uniformed postal police officer Carlos Acosta. Acosta tried to draw his weapon and identify himself, but before he could fire, Nosair fired two shots at him. The first of these shots hit Acosta in the chest but was deflected into his shoulder by a bullet-proof vest he was wearing, and the second just missed Acosta’s head. Despite being shot, Acosta returned fire, hitting Nosair in the neck. Nosair fell to the ground, dropping his weapon, a .357 caliber magnum revolver, at his side. Acosta recovered the weapon and detained Nosair. Ballistics testing showed that the weapon recovered from Nosair was the weapon that fired projectiles found in the room in which Kahane and Franklin had been shot, as well as in the area Acosta had been shot. Subsequent to these events, law enforcement personnel executed search warrants for Nosair’s home, car, and work lockers. Among the items seized in these searches was a handwritten notebook, in which Nosair stated that to establish a Muslim state in the Muslim holy lands it would be necessary: to break and destroy the morale of the enemies of Allah. (And this is by means of destroying) (exploding) the structure of their civilized pillars. Such as the touristic infrastructure which they are proud of and their high world buildings which they are proud of and their statues which they endear and the buildings in which they gather their heads (leaders). While Nosair was at the prison ward of Bellevue Hospital following the shooting, Nosair stated in response to a question from a treating physician that he had no choice but to kill Kahane, and that it was his “duty.” Tr. 9244-46. After Nosair was moved from Bellevue to Rikers Island, he began to receive a steady stream of visitors, most regularly his cousin ElGabrowny, and also Abouhalima, Salameh, and Ayyad. During these visits, as well as subsequent visits once Nosair was at Attica,3 Nosair suggested numerous terrorist operations including the murders of the judge who sentenced him and of Dov Hikind, a New York City Assemblyman, and chided his visitors for doing nothing to further the jihad against the oppressors. Nosair also tape recorded messages while in custody, including one stating: God the Almighty . . . will facilitate for the believers to penetrate the lines no matter how strong they are, and the greatest proof of that [is] what happened in New York. God the Almighty enabled His extremely brave people, with His great power, to destroy one of the top infidels. They were preparing him to dominate, to be the Prime Minister some day. They were preparing him despite their assertion that they reject his agenda . . . and that he is a racist. During Nosair’s state trial in 1991, an FBI informant, Emad Salem, began to befriend various of Rahman’s followers in an attempt to infiltrate the jihad organization.4 At that trial, Salem met El-Gabrowny, Nosair’s cousin, who was raising money to aid in Nosair’s defense. Salem also met other regular attendees such as Siddig Ibrahim Siddig Ali, Abouhalima, Ali Shinawy, Hamdi Moussa, and Ahmed Abdel Sattar. Salem, accompanied by El-Gabrowny, also met with Nosair. ElGabrowny introduced Salem as “a new member in the family.” Tr. 4713-15. As a result of these contacts, Salem traveled to Detroit with Rahman and others to attend a conference on the Islamic economy. During this trip, Salem, seeking to ingratiate himself to Rahman, informed Rahman of his prior service in the Egyptian military during the 1973 conflict with Israel. Rahman told Salem that this was not jihad because he had been paid to fight by an infidel government. Rahman also told Salem that he could make up for this, however, by assassinating Mubarak, a “loyal dog to the Americans.“ Before the Nosair trial ended, Salem was invited for dinner at El-Gabrowny’s house. During dinner, El-Gabrowny indicated he was concerned about being bugged by the FBI, turned up the television, and then discussed construction of high-powered explosives with Salem. Salem testified that after this dinner at El-Gabrowny’s house, bombing became a frequent topic of conversation between them. By early 1992, Rahman had also welcomed Salem into the group. Rahman specifically praised Salem for attempting to restart paramilitary training with the group, noting that there would come a day when the training would be needed. Mohammad Saad, the cousin of Sattar and a participant in the jihad group, developed a plan to get Nosair out of jail and confided the plan to Salem. Salem repeated the plan to El-Gabrowny, who cautioned them to slow down and await the outcome of Nosair’s appeal. After being badgered by Nosair to take action, El-Gabrowny met with Salem and told him that he was in touch with “underground people” who could help them construct bombs. Tr. 4730-31. El-Gabrowny instructed Salem on the superiority of remote detonators rather than timers, describing to Salem how a remote detonator could assist in bombing Dov Hikind. In June 1992 El-Gabrowny visited Nosair again in prison. Upon his return, he instructed Salem and Shinawy that Nosair wanted to see them. Salem testified that, when they made the visit, Nosair berated them for not proceeding with bombing plans and directed Shinawy to seek a fatwa from Rahman approving the bombings. On the way home from the visit, Shinaway told Salem that the planned operation would involved twelve bombs. Shinawy also explained that they would need guns in case they encountered police during the deployment, indicating that his source for firearms was Hampton-El. Two days later Salem went to El-Gabrowny’s house and found Shinawy already there. The three agreed that they would try to secure a “safehouse” for constructing bombs, and El-Gabrowny committed to attempt to obtain detonators from Afghanistan. A few days later, Shinawy summoned Salem to the Abu Bakr Mosque where he introduced Salem to Hampton-El. Salem and Shinaway explained to Hampton-El that they were making bombs but that they were having trouble getting detonators. Hampton-El said that he had access to “ready-made bombs” for $900 to $1,000 apiece. Tr. 4932-33, 6485-86. He also offered to obtain a handgun for Salem. A few days later Shinaway gave Salem a handgun presumably from Hampton-El. In early July 1992, a rift developed between Salem and the FBI, and it was agreed that Salem’s undercover investigation would be terminated. To explain his disappearance, Salem told El-Gabrowny that he needed to go to Spain for a while to take care of a problem in his jewelry business. In late 1992, the paramilitary training resumed, led by Siddig Ali and Hampton-El on weekends between October 1992 and February 1993. Defendants Amir and Fadil Abdelgani and Elhassan all participated in the training camp, as did Abdo Haggag, an Egyptian spy who testified for the Government during the trial. The purpose of the training was to teach the participants jihad tactics. There was talk that jihad was needed in Bosnia, and that some of the trainees might go there.5 As Siddig Ali later explained to Salem, the training was meant to prepare the trainees for jihad wherever it was needed. During training, Siddig Ali reported to Rahman, and Rahman offered his insights into the training.