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Tuesday, January 5, 2010

In light of the furor and hysteria surrounding the idea of releasing Yemenis from our prison at Guantanamo, we must again raid the Nielsen Readings archive for a fearless antidote. It prescribes sticking to our constitutional guns by trying all GITMO detainees, Yemeni or not, in U.S. criminal courts, as long as prosecutors have met the standard of probable cause. Otherwise, return them to their homelands, surveil them to kingdom come, and beseech the good men and women monitoring them to share pertinent information with proper authorities should any ex-prisoner head back to the United States with a bomb in his pants.

U.S. agents have accomplished this level and degree of surveillance before; it's just not as easy as compromising our constitutional principles and keeping those prisoners at Guantanamo indefinitely, with no due process.

As we wrote back in the summer of 2008: 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.


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