From Poder magazine, August 2008
How a Miami model for terrorist tracking and the resurrection of habeas corpus could be a boon for Al Qaeda hunters.
By Kirk Nielsen
Miami’s often vexing contributions to the annals of international terrorism sometimes offer clear insights. In June the United States Supreme Court ruled 5-4 that prisoners held as enemy combatants at the U.S. military base at Guantanamo, Cuba have the right to appear in federal courtrooms to challenge their detentions. That right, known as habeas corpus, is a tenet of the U.S. Constitution. And yet the ruling set off waves of paranoia in some circles of America. “A totally irresponsible and dangerous decision,” radio talk show host Monica Crowley declared on PBS’s McLaughlin Group. “I was at Guantanamo Bay in the fall of 2006. These are the world’s most hardened jihadists who should not have the rights and privileges of American citizens,” she added, totally prejudging the cases of all 270 prisoners held at Gitmo.
Strangely, the ruling even frightened editorial page editors at the Wall Street Journal, who penned a piece raising the specter of a new attack on U.S. soil, perhaps one “enabled” by a terrorist released as a result of the majority opinion in Boumediene v. Bush. The editorial noted that even before the ruling, U.S. commanders freed a Gitmo detainee whom they thought was safe but who last month exploded himself in Mosul, killing a group of Iraqi soldiers. America must be afraid to release even the most harmless of prisoners, the Wall Street Journal editors and other critics of the ruling seemed to argue.
Paranoia breeds pessimism, though, and obscures other possibilities. One is that five years in the Gitmo slammer might have radicalized hitherto angry but peaceable young men into murderous criminals. Another possibility is that the experience has actually softened some jihadists. Released on bond one might say, “I have fought the good fight, but enough with the Great Satan already. I will now devote my life to building homes and clean water pipes for the poor, caring for the sick and feeble, stopping child traffickers, or spending more time with my grandmothers.”
A third possibility is that Gitmo has further hardened the hardest jihadists. Of course, they’re the ones that scare Crowley, the Wall Street Journal editorial page editors, and many other Americans.
They need not fear habeas corpus, however. If sound evidence of violent intent is what landed these detainees in Gitmo, then Pentagon lawyers should have no problem convincing a judge that they are dangerous flight risks. They go right back to jail.
But what if federal judges are fooled and release a hundred guys like that Mosul bomber, whom U.S. commanders in Gitmo thought was Okay to free? Then we send America’s most professional manhunters to follow them.
That may sound far-fetched, but it isn’t. The FBI and CIA have been monitoring people for a long time, even terrorists, and have often excelled at it. The case of Khaled al-Mihdhar, one of the 9/11 hijackers, while ultimately tragic, is a case in point.
In late 1999, the CIA learned that Mihdhar, a Saudi, was staying at a hotel in Dubai before heading to Malaysia for a January 5, 2000 meeting with other Al Qaeda operatives. The CIA had previously linked Mihdhar to the Al Qaeda men who had bombed the U.S. embassies in Kenya and Tanzania in August 1998. CIA agents snuck into his room and photocopied his passport. In it they noticed a U.S. visa.
The problem wasn’t that American detectives couldn’t stay on Mihdhar. The problem was that they didn’t. The CIA failed to tell the FBI or the State Department or immigration authorities about Mihdhar’s U.S. visa so that the FBI could get a bead on him once he set foot on U.S. soil, and eventually arrest him on evidence he was involved in a criminal conspiracy. Nor did the CIA inform the FBI that when Mihdhar flew to the U.S. in March 2000 he was traveling with Nawaf al-Hazmi, another Al Qaeda operative and eventual 9/11 hijacker.
Had the FBI known this, agents would have had a good chance of arresting them in late 2000 for links to Al Qaeda operatives who bombed the U.S.S. Cole in October of that year, killing 17 sailors. Kenneth Maxwell, a supervisory agent with the FBI’s National Security Division at the time, told The New Yorker: “Two Al Qaeda guys living in California—are you kidding me? We would have been on them like white on snow: physical surveillance, electronic surveillance, a special unit devoted entirely to them.” Experts say that the fundamental FBI-CIA communication problem that failed to stop Mihdhar and al-Hamzi has been solved.
A stunning example of counter-terrorism within the confines of the U.S. Constitution is the arrest in 1995 of Ramzi Yousef, who was later convicted of plotting the 1993 World Trade Center bombing that killed six people. Acting on surveillance and other intelligence, an FBI counter-terrorism unit in Washington, D.C. learned that Yousef was in Pakistan and planning to cross into Afghanistan. Within three days, FBI agents had flown to Islamabad and swooped him up, with the help of Pakistani agents. Yousef was flown to New York City, jailed, received a court hearing, and was returned to his cell. He’s still in federal prison serving a life sentence without parole.
Miami was ground zero for an even older precedent for constitutional counter-terrorism. The suspects weren’t wild-eyed, anti-American religious fanatics who once received arms and training from the CIA and like to live in caves in Afghanistan. They were wild-eyed anti-Communist Green Beret types, who lost properties and businesses in the Cuban revolution and received munitions, commando, and espionage training from CIA specialists in the 1960s. The FBI called them anti-Castro activists.
It’s worth remembering that after failing to destabilize the Fidel Castro regime with Operation Mongoose and the Bay of Pigs invasion, some of these activists went on to commit some of the most notorious acts of political violence in the United States in the late 1960s, 1970s, and 1980s. Among their targets: United Nations headquarters in New York, foreign diplomats, the FBI ’s Miami field office, the Miami Federal Building, Miami International Airport, travel agencies, shipping company offices, and people who said publicly that tough diplomacy rather than terrorism might be a superior way to undermine a popular socialist revolution.
All that is so much bloody history now, in part because of a counter-terrorism strategy adopted by the FBI’s Miami field office in the 1980s. That’s when FBI special agents in charge de-emphasized short-term confrontation of anti-Castro activist groups and emphasized long-term surveillance, infiltration, even entrapment. They fostered the perception that the FBI was on the activists’ side and looking the other way as groups of exiles armed, trained, planned missions, even loaded weapons into boats in the Florida Keys.
But detectives were watching, and soon after the activists motored away from the docks officers would pounce. Incriminating weaponry sometimes conveniently went overboard, leaving insufficient evidence for prosecutors. The activists rarely went to jail in this scenario, but they didn’t commit violence either.
It helped to pay some off to work as informants, which remains a key tactic in the war on terrorism today. (A Pakistani man received $2 million for information leading to Yousef’s arrest.) By the early 1990s, the FBI had anti-Castro activist groups so thoroughly penetrated that in some cases their leaders were informants. As a result, violent energies that once found release on the streets of Miami and other American cities dissipated. (Generally, the FBI’s Miami field office also found monitoring covert activities of Cuban government agents in Miami a more valuable strategy than arresting them. In July, Lt. Col. Chris Simmons, a U.S. Army counterintelligence officer, told the Miami Herald that there are about 210 Cuban agents and officers in Florida.)
Overall the strategy worked quite well. Remember Orlando Bosch and Luis Posada Carriles, the anti-Castro activists who many informed people are convinced planned the 1976 bombing of a Cuban passenger jet in 1976, killing 73 people on board? Well, Bosch and Posada are living freely in Miami today and neither of them has blown up anything since 1997. That was the year bombs went off at a variety of hotels and restaurants in Havana, killing Italian tourist Fabio di Celmo and injuring 11 people. (Posada acknowledged responsibility in a famous 1998 interview with the New York Times and in a letter to this reporter from his Panama prison cell three years later).
Of course, there will always be close calls. On November 17, 2000 Panamanian detectives, assisted by informants, surveilled and arrested Posada and three other Miami residents—Gaspar Jimenez, Guillermo Novo, and Pedro Remon—after finding a gym bag full of C-4 explosives in a rental car they were using. Witnesses, including former accomplices, testified that the four had planned to detonate the explosives in a Panama City university auditorium while Fidel Castro delivered a speech. It’s hard to imagine that Panamanian detectives didn’t receive some kind of intelligence from FBI or CIA agents.
It’s also hard to imagine that FBI agents aren’t keeping tabs on the four of them now. Panamanian President Mireya Moscoso pardoned them just before she left office in 2004, and all but Posada returned immediately to Miami. Posada, who is not a U.S. citizen, arrived illegally in his friend Santiago Alvarez’s shrimp boat in early 2005, according to an informant who was onboard.
Thanks again to informants, the FBI arrested Alvarez himself and his assistant Osvaldo Mitat a few months later for an illegal weapons cache that included a Heckler & Koch grenade launcher, an M11 A1 machine gun, two Colt AR-15 assault rifles, and a gun silencer. In a successful bid for sentence reductions, Alvarez caused a bunch of his associates to surrender a much larger arms cache, including several dozen assault weapons, 14 pounds of C-4 explosives, 200 pounds of dynamite, and a lot of detonator cord. Mitat is scheduled for release in December, Alvarez next year.
And what FBI field office in its right mind wouldn’t be keeping careful watch on guys like José Dionisio Suarez and Virgilio Paz Romero? They, along with Guillermo Novo, were convicted for the 1976 car bombing in Washington, D.C. that killed former Chilean ambassador to the U.S. Orlando Letelier and his American aide Ronni Moffit. Suarez and Paz eluded the FBI for more than 15 years, but they were finally caught in 1990 and 1991, respectively. Both pled guilty, cut deals, and were paroled before serving their 12-year sentences. It’s doubtful that any Gitmo detainee is more steely and brazen than these guys were in their prime.
But because Suarez and Paz were foreign nationals and felons, they remained in jail awaiting deportation proceedings, as required by U.S. immigration law. Then suddenly U.S. Immigration and Customs Enforcement officials released Paz in July 2001 and Suarez a month later. That’s because the U.S. Supreme Court had ruled that indefinite imprisonment without trial or court hearing was unconstitutional. Sound familiar?
Now that habeas corpus has risen again, supporters of the Boumediene v. Bush ruling believe the United States can return to combating terrorists without compromising tenets of American democracy. It’s been done before. And who knows whether a released Gitmo detainee might prove more useful on the loose? With a special FBI unit on him, like white on snow, even the hardest jihadist could lead agents to the likes of Osama bin Laden, unwittingly or for a fee.