Sunday, February 28, 2010

Iran Captures A ‘Good’ Terrorist

By Ray McGovern,
February 27, 2010
Courtesy Of
Anti-War News

The Iranian government is celebrating the capture of Abdolmalek Rigi, the leader of a violent group called Jundullah (Arabic for Soldiers of God), which Tehran says is a terrorist organization supported by the United States, Great Britain, and Israel.

Jundullah is one of several groups that have been conducting bombings and other violent attacks against Iran’s Islamic regime with the aim of knocking it off balance.

In a July 7, 2008, article for The New Yorker magazine, investigative journalist Seymour Hersh quoted Robert Baer, a former CIA clandestine officer who worked in South Asia and the Middle East for nearly two decades, as saying that Jundullah was one of the militant groups in Iran benefiting from U.S. support.

Hersh also reported that President George W. Bush signed an intelligence finding in late 2007 that allocated up to $400 million for covert operations intended to destabilize Iran’s government, in part, by supporting militant organizations.

Hersh identified another one of the militant groups with "long-standing ties" to the CIA and the U.S. Special Operations communities as the Mujahedin-e-Khalq, or MEK, which has been put on the State Department’s list of terrorist groups.

But Jundullah has been spared that designation, a possible indication that the U.S. government views it as a valuable asset in the face-off against Iran, or in the parlance of the "war on terror," as one of the "good guys."

Gen. Mizra Aslam, Pakistan’s former Army chief, has charged that the U.S. has been supporting Jundullah with training and other assistance. But the U.S. government denies that it has aided Rigi or his group.

Since his capture this week, Rigi has been weaving intricate, though inconclusive, stories about his contacts with American officials. According to Iran’s Press TV, Rigi said the United States promised Jundullah military aid in support of its insurgency against the Islamic Republic of Iran.

Rigi described contacts in March 2009, claiming that U.S. representatives "said they would cooperate with us and will give me military equipment, arms and machine guns. They also promised to give us a base along the border with Afghanistan next to Iran."

Destabilize Iran

Rigi asserted that the U.S. representatives said a direct U.S. attack on Iran would be too costly and that Washington instead favored supporting militant groups that could destabilize Iran.

"The Americans said Iran was going its own way and they said our problem at the present is Iran… not al-Qaeda and not the Taliban, but the main problem is Iran," Rigi said, according to Press TV.

"One of the CIA officers said that it was too difficult for us [the United States] to attack Iran militarily, but we plan to give aid and support to all anti-Iran groups that have the capability to wage war and create difficulty for the Iranian (Islamic) system," Rigi said.

Rigi added that the Americans said they were willing to provide support "at an extensive level." However, in Press TV’s account, Rigi did not describe any specific past U.S. support for his organization.

Iran’s security forces announced that they had arrested Rigi on Tuesday by bringing down his plane over Iranian airspace, as he was onboard a flight from the United Arab Emirates to Kyrgyzstan, where he said he was expecting to meet with a "high-ranking" U.S. official.

Rigi’s capture represents an embarrassment for Western and Israeli intelligence, which have tried to stir up Iran’s minorities, comprising almost half of the population. Jundullah contends that it is protecting the rights of Sunnis in Shiite-dominated Iran.

Reflecting Priorities

The unwelcome spotlight on Rigi and Jundullah threatens to bring out of the shadows a broader U.S. and Israeli strategy for regime change in Tehran, a goal that dates back at least to President Bush’s "axis of evil" speech in 2002.

According to this analysis, the fear about Iran acquiring a nuclear weapon in a few years – if it decides to restart the weapons part of its nuclear development program – is largely a synthetic rationale for ratcheting up tensions, much as Bush’s claims about Iraq’s non-existent WMD were a pretext for regime change in Baghdad.

Under such a scenario, "good guy" terrorists like Jundullah could be enlisted for purposes other than simple violence and disruption. For example, they could be used to sabotage any favorable Iranian response to President Barack Obama’s efforts toward engagement.

And this precisely is what Jundullah did last October, right after the Ahmadinejad government gave tangible proof that it was ready to engage on the nuclear issue in response to Obama’s call for negotiations.

On Oct. 1, 2009, Tehran shocked virtually everyone by agreeing to send most (as much as 75 percent) of its low-enriched uranium abroad to be turned into fuel for a small reactor that produces medical isotopes.

Even the New York Times acknowledged that this, "if it happens, would represent a major accomplishment for the West, reducing Iran’s ability to make a nuclear weapon quickly, and buying more time for negotiations to bear fruit."

Iran’s chief nuclear negotiator, Saeed Jalili, gave Tehran’s agreement "in principle," at a meeting in Geneva of representatives of members of the U.N. Security Council plus Germany, chaired by Javier Solana of the European Union.

Reversing the Bush administration’s allergy to talking with "bad guys," Obama had sent Under Secretary of State William Burns to the Geneva meeting. A 45-minute tête-à-tête between Burns and Jalili marked the highest-level U.S.-Iranian talks in three decades.

Jalili also expressed Iran’s agreement to open the newly revealed uranium enrichment plant near Qum to international inspection within two weeks, which Tehran did.

Enter Jundullah

However, on Oct. 18, 2009, Jundullah detonated a car bomb at a meeting of top Iranian Revolutionary Guards commanders and tribal leaders in the province of Sistan-Baluchistan in southeastern Iran and mounted a roadside attack on a car full of Guards in the same area.

A brigadier general who was deputy commander of the Revolutionary Guards ground forces, the Revolutionary Guards brigadier commanding Sistan-Baluchistan, and three other brigade commanders were killed in the attack; dozens of other military officers and civilians were left dead or wounded.

Jundullah took credit for the bombings, which followed years of lethal attacks on Revolutionary Guards and Iranian policemen, including an attempted ambush of President Mahmoud Ahmadinejad’s motorcade as he drove through Sistan-Baluchistan in 2005.

The Oct. 18 attack – the bloodiest in Iran since the 1980-88 war with Iraq – came one day before talks were to resume at the International Atomic Energy Agency (IAEA) in Vienna to follow up on the Oct. 1 breakthrough. The killings surely raised Iran’s suspicions about U.S. sincerity regarding better relations.

It’s a safe bet that the Revolutionary Guards went directly to their patron, Supreme Leader Ali Khamenei, with evidence that the West cannot be trusted. Khamenei issued a statement on Oct. 19 condemning the terrorists, whom he charged "are supported by certain arrogant powers’ spy agencies."

The commander of the Guards’ ground forces, who lost his deputy in the attack, charged that the terrorists were "trained by America and Britain in some of the neighboring countries," and the commander-in-chief of the Revolutionary Guards threatened retaliation.

A lower-level Iranian technical delegation did go to Vienna for the meeting on Oct. 19, but Iran’s leading nuclear negotiator Saeed Jalili stayed away. The Iranians began to raise objections foreshadowing backsliding on their earlier commitment in principle to the export of most of their low-enriched uranium.

New Alternatives

Still, since then, the Iranians have broached alternative proposals that seemed worth exploring — for example, sending for further enrichment smaller quantities of low-enriched uranium in stages.

However, the Obama administration has rejected these alternative proposals out of hand, reportedly at the instigation of White House Chief of Staff Rahm Emmanuel and neocon regional emissary Dennis Ross, whose apparent priority is to avoid anything that might strengthen Ahmadinejad.

In other words, despite the rhetoric about the need to prevent Iran from acquiring a nuclear weapon, regime change appears to remain the transcendent goal of neocon-lite Democrats at the White House and in Hillary Clinton’s State Department.

These neocon-lites seem to have adopted the benighted view that the Iranian regime will crumble, if enough outside pressure is applied.

Add to the mix, the constant harping about the "fraudulent" election last June and support for regime opponents who will not accept the election results, which non-propagandistic and reputable polls indicate Ahmadinejad really did win. [See's "US Media Replays Iraq Fiasco in Iran."]

Oh, yes; "crippling sanctions" are also in the picture.

Tehran Still Ready to Negotiate

Despite these obstacles, Iran’s post-October 1 proposals on the nuclear issue strongly suggest that Tehran is still willing to negotiate. But it appears that Secretary Clinton and others inside the Obama administration, whether neocons or neocon-lites, don’t actually want a deal.

The way they seem to see it is that an agreement on the nuclear issue would make regime change that much more difficult.

Which raises the question of who provided Jundullah the kind of intelligence and direction that enabled the bloody attack of Oct. 1 — and why?

Cui bono? Who profits from the kind of violence that hardens the attitudes of the Revolutionary Guards and their patron Khamenei, and enables the West to portray them as reneging on the October agreement in principle.

Answer: Israel’s right-wing government, the American neocons and others who won’t give up on long-cherished dreams of regime change in Tehran, which would then supposedly lead to a cut-off of Iran’s support for Lebanon’s Hezbollah and Palestine’s Hamas.

The truth be told, few well-informed analysts in either the United States or Israel actually believe there is an imminent nuclear threat from Iran, which has encountered technical problems refining uranium even to low levels that are suitable for generating nuclear energy.

But that doesn’t stop the gamesmanship toward Iran anymore than the lack of WMD evidence stopped President Bush from whipping up an alarm about Iraq in 2002-03.

Does Secretary Clinton really expect to be taken seriously with her Rumsfeldian demand that Iran prove a negative — that it is NOT working on a nuclear weapon?

In a major speech last week in Doha, Clinton decried the fact that Iran "has refused to demonstrate to the international community that its program is entirely peaceful." Remember when the Bush administration demanded that Iraq’s Saddam Hussein prove he didn’t have chemical and biological weapons?

In that same speech, Clinton let slip that Iran "doesn’t directly threaten the United States, but it directly threatens a lot of our friends, allies, and partners" — read Israel, which itself possesses an estimated 200-300 nuclear weapons in its undeclared arsenal.

Like other senior U.S. officials – and all major U.S. news outlets – Clinton forgets to mention that on Sept. 18, 2009, the IAEA member states formally voted to call on Israel to join the Non-Proliferation Treaty (NPT) and submit its nuclear facilities to the same oversight that nearly all other nations do.

Israel issued an official statement that it "deplores" that vote, and U.S. Ambassador Glyn Davies rejected the resolution, claiming that it unfairly singled out Israel.

In her Doha speech, Clinton insisted that it is the Iranian "nuclear weapons military program" that all should be concerned about. She bemoaned "the rise of influence and power by the Revolutionary Guard — which is really tragic."

Well, Madam Secretary, you might want to talk to CIA Director Leon Panetta about putting the reins on Jundullah and other violent groups so as not to empower the Revolutionary Guards still further — unless the hardening of lines on both sides suits some grander purpose.

Iraq Redux

We know from official British documents (the "Downing Street Memos") that, on July 20, 2002, former CIA chief George Tenet told the head of British intelligence that President Bush had decided to make war on Iraq for regime change and that the war would be justified by spreading fear that Saddam Hussein might give weapons of mass destruction to terrorists.

The British intelligence chief, Richard Dearlove, explained to Tony Blair and his top national security officials that, according to Tenet, the intelligence would be "fixed" around the policy.

Not only full-scale neocons but also wannabe neocons like Secretary Clinton and U.S. Ambassador to the U.N. Susan Rice are now taking the same line and doing the same "fixing" about Iran.

Ambassador Rice recently charged that Iran is pursuing "a nuclear weapons program with the purpose of evasion." Clinton professes to be "deeply concerned" over what she calls "Iran’s pursuit of nuclear weapons."

Clinton and Rice should check with National Intelligence Director Dennis Blair, who is still using the subjunctive regarding the possibility of a restarted Iranian nuclear weapons program.

As for me, I’m deeply concerned at the widespread impression that the Secretary and others have fostered. A CNN poll last week indicated that 70 percent of Americans are in the same indicative mood, believing that Iran already has a nuclear weapon. That’s downright eerie — a flashback to Iraq.

If memory serves, that’s about the same percentage of Americans who were convinced that Saddam Hussein had WMD on the eve of the invasion of Iraq.

Condoleezza-Type Whirling

During her final year as Secretary of State, Condoleezza Rice was racking up so many frequent-flyer miles jetting back and forth to Israel that wistful Arabs decided that the definition of "condoleezza" must be perpetual motion signifying nothing.

Now, her successor – joined by other senior U.S. officials – is engaged in similarly peripatetic endeavors.

Leon Panetta, National Security Adviser James Jones, Defense Secretary Robert Gates, and Joint Chiefs Chairman Mike Mullen have all visited Israel since January, and Vice President Joe Biden will be there next week.

Meanwhile, Israeli Defense Minister Ehud Barak is visiting Washington this week, and Prime Minister Benjamin Netanyahu will arrive next month.

Perhaps, we should hope that this is just pointless whirling about, rather than something more serious. But these high-level meetings are occurring against a continued backdrop of U.S. and Israeli disdain for international law.

Senior American officials, dating back at least to the post-World War II Nuremberg Tribunal, deemed aggressive war to be a war crime. Although I don’t recall anyone rescinding the Nuremberg principles or amending the U.N. Charter, one hears cheerful talk from both American pundits and some U.S. officials that "everything is on the table" regarding Iran.

One asks: including another war of aggression? The answer: Don’t you know what "everything" means?

This is profoundly unsettling for those of us who thought that disdainful trashing of post-World War II agreements would stop when Bush and Cheney rode off into the sunset. Even if couched in the Orwellian language of "preventive" or "preemptive" war, "a public threat to engage in aggressive war" is itself a violation of the U.N. Charter. Does no one care?

Neoconning Forward

Neocon pundits continue to stoke these fires. In Tuesday’s Washington Post, for example, columnist Anne Applebaum listed a number of utilitarian reasons why President Obama will not bomb Iran. (International law was not one.)

Applebaum suggests, though, that Obama’s "defining moment" could come when he is awakened at 2:00 AM by a call from Israeli Prime Minister Netanyahu who tells him "Israel has just carried out a raid on Iranian nuclear sites. What then?"

"If that ever happened," Applebaum writes, "I do hope that this administration is ready, militarily and psychologically … for an unwanted war of necessity."

The message? Disregard the intelligence that doubts the Iranians are building a nuclear bomb: no, better still, "fix" it to suggest that they are.

Then, turn loose the Jundullahs to worsen tensions and to strengthen the hands of Iran’s hardliners who will cite violent provocations as proof that the United States is not acting in good faith; that will add to the impression of a gathering threat; next institute crippling sanctions to further ramp up the anger.

And be ready, in case Netanyahu starts something the United States will have to finish.

If this kind of scenario is allowed to play out, hostilities with Iran will make the wars in Iraq and Afghanistan look like volleyball games between Mount Saint Ursula and Holy Name high schools. Can President Obama be so naïve as to be unaware of the stakes here?

This article appeared first on

Read more by Ray McGovern

Note: The following video was NOT part of the above article, and was independently included by me.


CIA Subversion Of Iran and The Election Riots

Agents provocateur have duped people into civil disobedience, without any hard evidence of elections fraud. The protests are getting increasingly violent, with many things being set ablaze, people attacking the police, and fake death scenes being used as propaganda, with 'plain clothes basiji' being blamed; again no proof, as the videos do not show the shooter, nor confirm their accusations.

Perhaps the shooters are agents of a foreign government, but don't expect CNN to tell you that, as they are agents of zionist traitors, who are the arch enemies of Islam, truth and peace.

Mitchell Wanted To Quit Over U.S. Bias For Israel

By Jack Khoury,
Haaretz Correspondent and Haaretz Service
Last update - 11:22 26/02/2010
Courtesy Of
Haaretz NewsPaper

An Arab political source said Friday that special U.S. Mideast envoy George Mitchell has requested to resign due to his frustration with the way the Obama administration has been handling the Israeli-Palestinian conflict, according to a Nazareth-based daily.

Hadith a-Nass reported that Mitchell's request stemmed partly from to his own failure to advance the resumption of peace negotiations between Israel and the Palestinians and also from his perception that certain elements within the State Department hold biased favor toward Israel.

The White House turned down Mitchell's request, according to Hadith a-Nass.

No verification of the report was available.

Peace talks were halted more than a year ago over the war in the Gaza Strip and have not resumed, due largely to a Palestinian demand that Israel first impose a complete freeze on building in the West Bank and East Jerusalem and Israel's refusal to do so.

A new working paper released by the Palestinian indicates that the Palestinian Authority has warned it may abandon its support of the 1993 Oslo Accords, which outlines a two-state solution to the conflict with Israel.

The Palestinians are instead intending to pursue the creation of a binational state between the Jordan River and Mediterranean Sea, according to a document drafted by the PA's veteran chief negotiator.

US Military Spied On Civilian Phone Calls

By John Byrne
Friday, February 26th, 2010 -- 9:43 am
Courtesy Of
The Raw Story

United States military intelligence spied on Planned Parenthood and other domestic groups as part of US security preparations for the 2002 winter Olympics in Salt Lake City, according to a recently declassified military document obtained by a civil liberties group Thursday.

The document (PDF - page 98), drafted by a Pentagon Deputy Inspector General whose name is redacted, was included in more than 800 pages released to the Electronic Frontier Foundation as part of a Freedom of Information Act Request. They include reports from the Pentagon's Intelligence Oversight Board that were submitted to the Defense Secretary from 2001 to 2007.

Referring to an incident where military intelligence personnel distributed information about FBI spying on the 2002 Olympics, the inspector general's office tersely remarked that an "intelligence oversight violation occurred."

"The document... contained US Persons data in referring to an reporting on organizations (Planned Parenthood, the white supremacist group National Alliance) and their involvement in protests and literature distribution," the inspector's office wrote. "Also noted was the report contained a large section labeled "GENERAL CRIMINAL ACTIVITY." Collection and dissemination of US Persons information by military intelligence assets is not allowed unless this information constitutes "Foreign Intelligence."

"The inclusion of these two sections in this intelligence product is clearly outside the purview of military intelligence assets and should be handled through law enforcement or Anti-Terrorism/Force Protection channels," the inspector's office added. "An inquiry into the circumstances of this violation was conducted and the result will be forwarded via separate correspondence."

 US military spied on Planned Parenthood, civilian phone calls

Electronic Frontier Foundation also notes that military intelligence spied on the anti-war group Alaskans for Peace and Justice in 2005 (pages 122-137), and that NORAD had "procedural problems" relating to spying on "US Persons" (pp. 257-258).

Despite a clear violation of military protocol and probable violation of US law, such reports are rarely made public. These documents were only made public under the Freedom of Information Act and were not scheduled for release.

"Intelligence oversight reporting is rarely disclosed to the public," EFF's Nate Cardozo noted in a posting about the documents on Thursday.

"Much of the reported improper activity consisted of intelligence gathering on so-called “U.S. Persons,” including citizens, permanent residents and U.S.-based organizations," Cardozo added. "Although Defense agencies are generally prohibited from collecting such information (except as part of foreign intelligence or counter-intelligence activity), it is apparent from the unredacted reports released to EFF that some DoD components have had chronic difficulty complying with that prohibition."

Wired's Kim Zetter notes that the documents provide no context or background about how or why the Pentagon spied on Planned Parenthood and other groups.

"The reports provide little context for the information that’s disclosed, leaving the public to wonder about the nature and extent of the information and surveillance revealed in them," Zetter wrote. "Pertaining to the Planned Parenthood members, for example, the oversight report provides no explanation about how the information was collected. Nor does it indicate why the information was collected."

In another possible legal violation, military officers listened into civilian cellphone calls in 2007. Zetter explains:

Another oversight document discusses an incident involving the interception of civilian cellphone conversations of U.S. persons in April 2007. During a field exercise at Fort Polk, Louisiana, a Signals Intelligence noncommissioned officer operating a SIGINT collection system intercepted the cell phone calls, though the document doesn’t indicate if they were intercepted on U.S. soil or outside U.S. borders.

Initial reports indicated that the officer listened to the conversations for entertainment purposes, and the incident was reported to the National Security Agency. But the inspector-general document indicates that the officer never admitted to this and indicates only that he may have listened to some conversations “longer than necessary to do his job.”

Electronic Frontier Foundation has more analysis and details of the newly released documents here.

Speak No Evil

An Al-Qaeda PR Man Tests America’s Constitutional Commitment To Freedom Of Speech.

APRIL 01, 2010 ISSUE
Courtesy Of

It’s disorienting to sit across from a pair of bright, bespectacled military attorneys a metro stop away from the Pentagon talking about freeing a convicted terrorist from a life sentence. Discussions about “fundamental rights” extending to noncitizens, government overreach in the War on Terror, and the slippery slope of the Military Commissions Act—this was more like interviewing ACLU lawyers, long-haired, indignant, and ready to be jailed defending their client.

But here were two clean-cut Catholic guys who claim they are inspired by the perspicacity of the Founding Fathers and a rule of law stronger than any post-9/11 race to rid the world of Islamist evildoers. They say their current case has as much to do with the rights of American citizens as it does with one long-term resident of Guantanamo Bay.

Army Major Todd Pierce, a Judge Advocate General reservist, and Michel Paradis, a civilian lawyer, serve on a team for the Defense Counsel of the Court of Military Commission Review. They are helping to build the appeal for Ali Hamza al-Bahlul, an al-Qaeda media man and Osama bin Laden’s personal secretary, who was convicted by a military tribunal in 2008.

His work as a propagandist—and, these attorneys suspect, his loutish behavior at trial: waving a poem praising the 9/11 attacks didn’t help his cause—landed al-Bahlul the heaviest sentence of the three men successfully prosecuted under the Military Commissions Act to date. Still, they believe his conviction violated the First Amendment.

Come again?

These lawyers couldn’t have picked a more repellent client. Not only is al-Bahlul a noncitizen, he admits to joining al-Qaeda, swearing allegiance to bin Laden, and writing speeches for the terror mastermind. He allegedly bunked with eventual 9/11 hijackers and reportedly provided a radio receiver to bin Laden to listen to the aftermath of 9/11 via satellite. During his trial, he played with a paper airplane. He vows to continue the fight.

This appears to be an open-and-shut case, but defense attorneys point out that prosecutors could never tie al-Bahlul—who was captured and first indicted in 2004—to a single violent act against coalition forces. Nevertheless, he was charged with conspiracy, material support for terrorism, and solicitation to commit murder.

Defense attorneys have zeroed in on the solicitation charge, saying it hinged on a single recruitment video al-Bahlul produced, “State of the Ummah.” They argue that it was never proved that the video was anything more than an abomination to its American viewers, at least the ones who were brought in to testify during al-Bahlul’s sentencing. The prosecution offered no evidence that the video called for, or resulted in, a specific act of murder.

“There is little doubt that Mr. Al-Bahlul is not a sympathetic defendant,” read the written appeal, filed with the Military Commission Review last September. The solicitation charge, however, “conflates offensive behavior with criminal behavior. As offensive as it may be, State of the Ummah is speech that falls within the core protections of the First Amendment.”

If this isn’t acknowledged, the defense claims, the U.S. government could very well round up any foreigner in the Global War on Terror—for the battlefield is indeed global—and prosecute him for things he has said, written, or produced. If it stands, the appeal states, the conviction of al-Bahlul on solicitation charges could even pave the way for domestic politicians to start suing foreign journalists for libel. It would create a “chilling effect” on Americans’ access to foreign information, including political propaganda, which is currently protected by lower court rulings.

Al-Bahlul’s film “provides a valuable window into the anxieties and grievances of a substantial number of Muslims inside and outside the United States,” the defense wrote. Critics tell TAC that censoring the propaganda’s creator makes the U.S. government no better than China, deciding for its people what they can read on the Internet. (“State of the Ummah” is, however, still available via YouTube.)

In effect, the First Amendment not only protects al-Bahlul’s speech but Americans’ access to it. According to the defense, “At a minimum [open access to the video] invites public condemnation and a reaffirmation of the core values it ostensibly seeks to undermine. … The courts must abide by the First Amendment, in particular, because its protection of speech is not simply, or even primarily, for the benefit of the defendant. It is for society at large.”

Pierce said every American should put al-Bahlul’s ugliness aside and concentrate on the implications of his case: “[This] is a conservative issue. It’s about speech and not having ‘preferred speakers’ and the government not having a monopoly on speech.” Pressing on, he suggests that citizens take special note of what happens here: if the rule of law breaks down for noncitizens, what is to stop an ambitious Congress and “a few revisions in the law” from prosecuting unsavory speech by American activists alleged by military courts to be soliciting terrorism? U.S. citizens can already be detained under the Military Commissions Act as un-lawful enemy combatants if the government suspects they have aided the Taliban or al-Qaeda.

It is the speech, not the speaker, that is at issue here. The defense is not claiming that nonresident aliens have constitutional rights per se, but that the First Amendment—“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech”—prevents the government from prosecuting speech in a congressionally authorized court of law on U.S. territory, even from unlawful enemy combatants like al-Bahlul.

“If you have been detained in U.S. territory for nine years, brought into a U.S. court and prosecuted—for the government to say we can prosecute him under our laws but at the same time say he does not have the rights given to us by those laws. … you cannot have it both ways. If you are going to invoke the moral authority of the U.S., you cannot pick and choose,” Paradis says. He notes that he and Pierce speak for themselves, not for al-Bahlul, who continues to boycott his military counsel. The defense team is thus “assisting” the jailed Yemeni’s case, but not officially representing him in public.

This makes the lawyers’ personal efforts even more extraordinary. Al-Bahlul was initially charged with a single count of conspiracy before the original military commission instituted by the Bush administration in 2002. He requested self-representation, and the judge at the time obliged. After the Supreme Court deemed the Bush commissions illegal, and Congress passed a new Military Commission Act in 2006, at his second trial al-Bahlul was indicted on fresh charges, and the new judge rejected his request to represent himself, compelling him to accept military counsel.

But his appointed attorney, Air Force Maj. David Frakt, honored his client’s request and sat mute during the trial. Frakt has since spoken publicly in al-Bahlul’s defense and has been highly critical of the MCA, going so far as to question whether conspiracy and material support for terrorism are even viable war crimes.

Meanwhile, Pierce took leave of his family and professional life in Minnesota to come to Washington last year to volunteer on the appeal. The appeals are automatic, so defense lawyers need not be so earnest. But to people like Pierce, this goes beyond al-Bahlul: “I see the Military Commissions Act [undermining] the authority of the Constitution.”

The defense team has informally engaged Bruce Fein, a lawyer, constitutional scholar, and former Reagan administration justice official who has had a series of breaks with Republicans in recent years, calling for the impeachment of President George W. Bush over the domestic wiretapping program and Bush’s 750 signing statements.

“I love this country and the rule of law, and I hate to see it destroyed for nothing,” Fein told TAC, noting that al-Bahlul “didn’t kill anybody, he made a video.” He said he supports the First Amendment approach in al-Bahlul’s case and may get involved in a “more formal way” should it advance. If the appeal under the Court of Military Commissions Review fails, it will move to the D.C. Circuit Court of Appeals. From there, lawyers hope to take it all the way to the Supreme Court.

Fein said at the heart of the First Amendment defense is the 30-year-old Brandenburg v. Ohio decision, in which the Supreme Court ruled that the state could not prohibit inflammatory speech unless it incites or produces “imminent lawlessness.” While “State of the Ummah” features gruesome footage of Israeli violence against Muslims in the Palestinian territories and children ostensibly hurt by U.S. sanctions on Iraq, juxtaposed with rotund Saudi princes and lengthy dissertations by bin Laden, the defense argues that it does not rise to the level of inciting a specific action like an attack or riot. Rather, it constitutes the more “general advocacy” of jihad, political speech the Supreme Court says the First Amendment protects, like it or not.

“There has to be an imminent likelihood that there will be violence. Where is the evidence that anyone acted on this video to go out and kill an American?” asks Fein, who suggests the government is hurting its ability to fight terrorism through such prosecutions. “Our greatest strength is the rule of law. Applying the rule of law even-handedly will dry up the recruits [or terrorism].”

Not surprisingly, the prosecution is unimpressed with this line of reasoning. After oral arguments in early February, Navy Capt. Edward White said, “Our position was that, as an enemy combatant waging war against the United States from abroad, [al-Bahlul] does not have First Amendment rights. He crossed the line into criminality, soliciting other people—inducing, enticing, encouraging, persuading them—to commit war crimes.” Calls to the Office of Military Commission for further comment went unreturned.

Scott Silliman, professor and director of the Center on Law, Ethics, and National Security at Duke University, toldTAC that he, too, considers the First Amendment argument weak. “[The Constitution] does not protect everyone in the world,” he says. He points out that members of the U.S. military are limited in speech everyday. In fact, soldier Marc Hall was jailed in December for recording a rap song criticizing stop-loss. The military deemed his song a “communications threat.”

Silliman doesn’t agree that if al-Bahlul’s conviction stands, the military could begin targeting foreign journalists or anyone picked up on the global battlefield espousing offensive speech: “I would argue that the First Amendment does not extend to a nonresident alien, period.”

But this wouldn’t the first time constitutional rights were afforded to nonresidents. In 2008, the Supreme Court ruled 5-4 that in creating the MCA in 2006, Congress had illegally suspended habeas corpus for noncitizen detainees. Writing for the majority, Justice Anthony Kennedy said that the president and Congress do not have “the power to switch the constitution on or off at will.”

Meanwhile, critics like British writer Andy Worthington, who wrote “The Guantanamo Files” and, if you believe the defense’s admonitions, could be detained someday for his sustained written and verbal attacks on U.S. detention policies, say there is growing evidence that the government is already considering a certain kind of speech “militant activity.”

“What’s kind of been submerged here is these recidivism charges coming out,” Worthington tells TAC. “It’s worth examining.”As early as 2007, the Pentagon was not only counting ex-prisoners caught with guns and IEDs in its running total of so-called recidivists, but those with pens and video cameras, too. According to one of its own press releases listing “former Guantanamo detainees who have returned to the fight,” the government cited among those taking part in “anti-coalition activities” three UK-based Muslims who produced a film about their experiences in prison at Gitmo and another former detainee who wrote a critical op-ed for the New York Timesfrom his new home in Albania.

Worthington commends the free-speech challenge as laudable, but acknowledges it will be a difficult case to make in a military court. “I have to say it is an ingenious argument, but I’m not entirely sure they will get anywhere with it. It remains to be seen.”

Kelley Beaucar Vlahos is a reporter in the Washington, D.C. area.