A View From Abroad

In the Australian journal Justinian Roger Fitch weighs in on the case against Rumsfeld, recent Guantánamo litigation, the status of José Padilla and other developments.

Our Man in Washington

By Roger Fitch Esq.

The war crimes complaint against outgoing Secretary of Defence Donald Rumsfeld and others – e.g. torture-enabling Bush “lawyers” – is going forward in Berlin, as I foreshadowed in my last post. The Center for Constitutional Rights has this report.

More evidence is emerging against Rumsfeld, as Salon reports. According to The Nation, a prosecution of Rumsfeld is not as farfetched as some may think. At the very least, he will need to be circumspect in future about travel to countries claiming universal jurisdiction over crimes committed in other places, such as: Germany, Belgium, Denmark, France, the Netherlands, Norway, Spain, Britain, Canada and New Zealand.

And who knows? Perhaps even a post-Howard Australia.

One of the proposed defendants in the German case is Department of Defence general counsel William Haynes II, who signed off on one of the most notorious “torture memos” prepared by Bush lawyers.

For over three years, George Bush has sought Senate approval for Haynes’ appointment to the Court of Appeals. At his last confirmation hearings, the nominee admitted assisting in the Al-Qahtani “interrogation” in Guantanamo, the same procedure in which Rumsfeld took an active part (see my post of August 3).

Yet only a day after Haynes was named in Germany for war crimes, Mr Bush, in his wisdom and arrogance, nominated him once again for the 4th Circuit Court of Appeals. And why not? Jay Bybee (snap), Haynes’ fellow accused in Germany, is already a Court of Appeals judge. He got on the bench before the Senate learned about his torture memo.

At least the German charges were quite widely reported. However, little publicity was given in Australia to a legal opinion released by Melbourne’s Human Rights Law Resource Centre. The centre’s press release implied that the Howard Government’s ministers, no less than Rumsfeld, are not safe from war crimes charges, because…

the US proposal to try David Hicks before a freshly constituted Military Commission contravenes Article 3 of the Geneva Conventions in that such a trial is not capable of being regarded as a fair trial at international law … such a trial would be in contravention of the Australian Criminal Code ... ministers are subject to the Australian Criminal Code; and … to knowingly counsel or urge that such a trial be conducted before a Military Commission constituted under the relevant US legislation would constitute a war crime under the Australian Criminal Code.

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Back in the US, a proud member of the Guantanamo Bay Bar Association has spoken out in no uncertain terms. In a Huffington Post blog, Gitmo defence lawyer Candace Gorman let the government have both barrels and didn’t shy from the words “war crimes”.

Ms Gorman was particularly outraged that one of her clients had received repeat Combat Status Review Tribunals (the laughable replacement for proper habeas hearings). The practice in question has just been reported in the new study by Seton Hall Law School, No Hearing Hearings. It seems the prohibition against double jeopardy, as with so many quaint “traditional” legal concepts, is unknown to Bush lawyers.

Not wishing to leave anything to chance or the human decency of the military personnel who sit on tribunals, the government is providing detainees with second, and even third, CSRTs.

These are needed when detainees are unexpectedly found to be “No Longer Enemy Combatants”, the expression Judge Robertson called “Kafkaesque”. However, that shouldn’t be a problem since detainees can be subjected to multiple CSRTs until the desired result is achieved.

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Thanks to other members of the Guantanamo Bar and National Public Radio we now have audio tapes of some of the CSRTs. Interestingly, they are for the six Bosnian-Algerians collectively forming the Boumediene case. That’s the case now before the DC Court of Appeals along with the Al Odah (Hicks) case.
The NPR link is valuable as it also links the documents, including translated Bosnian court decisions and orders that prohibited the extradition of the detainees, whom the US summarily abducted (sorry, rendered) from Bosnia, far from any battlefield.

The Boumediene appellants’ brief in the Court of Appeals has just been filed. The brief for the Al Odah appellees, incidentally the first merits brief in which David Hicks’ military counsel Major Mori has joined can be found here.
The Boumediene case is one of only two the government won in DC district court. Success in both was due entirely to their fortuitous assignment to the slavishly Bush-friendly judge Richard Leon.

There are 15 district court judges in Washington who have ruled on detainee cases. Judge Leon is the only one who has been prepared to say that dusky aliens, arbitrarily branded “enemy combatants” – a category utterly unknown to law – have no rights which, to quote the Dred Scott case, “a white man is bound to respect”.

Richard Leon (snap) was happy to make such a ruling, even though the United States Supreme Court sent the Guantanamo cases to DC district court in 2004 for the express purpose of hearing the habeas claims of the detainees.
To add to the problems of the Bush administration, a federal court in New York is edging closer to requiring the production of the infamous post-9/11 presidential “order” that purported to authorise the CIA’s use of “alternative” interrogation techniques. For the first time, the government has admitted that the order exists.

The existence of a presidential directive authorising “enhanced interrogation techniques” was first disclosed in FBI reports obtained by the ACLU in FOI actions. Now, it is hoped the court will order the production of the presidential edict to see if such things as “water-boarding” – clearly torture – were approved.

A federal court in Los Angeles has just struck down another post-9/11 presidential order, one which designated “terrorist” organizations. The judge ruled that president Bush’s designation of 27 groups and individuals as “global terrorists” violated the Constitution because it was made without any explanation of the basis or standards for the designations. Here’s The New York Times report.

The government no longer shies away from what the world calls torture. But, according to the Justice Department, it’s either got to be kept secret (so “terrorists” won’t, say, learn how to resist mock-drowning) or irrelevant – or both. Consequently, the government has resisted any defendant’s ability to disclose mistreatment. It’s too much information.

For the Bush lawyers, torture requires a new “don’t ask, don’t tell” policy: that’s the import of filings in the DC district court habeas cases of Bismullah and Majid Khan, as well as in the ongoing Padilla criminal case in Florida and the Al Marri appeal in the 4th Circuit.

In these and other cases the DoJ seems prepared to argue once again that, even if it occurs, torture doesn’t matter because “enemy combatants” have no substantive legal rights. As for the hearings themselves, the “military commissions”, with their limited DC Court of Appeals review, provide far fewer procedural rights than were accorded Nazi and Japanese war criminals tried by the US.

In the Padilla case, the government is claiming, not only that the defendant mustn’t be allowed to talk about his detention and possible torture, but the jury must not hear about it – it might prejudice jurors against the government.
In yet another Catch-22, the government, by stonewalling the production of “irrelevant” military medical records, is effectively mocking Padilla’s inability to prove he was tortured while in military custody.

In the Al Marri case, which is shaping up as the next Supreme Court showdown, the Bush lawyers want judicial sanction for the right to strip all non-citizens in the US – even legal immigrants – of their habeas rights. All that would be required is a (conclusive) finding by Bush or his Defence Secretary that the miscreants are “unlawful enemy combatants”.

A number of interesting amicus briefs have been filed in support of Mr Al Marri, including that of Bill Clinton’s attorney general Janet Reno and other ex-DoJ officials, some from Republican administrations.

Reno’s brief is here and others have been linked by Lyle Denniston on Scotusblog.

And what about the world’s most dangerous driver, Salim Hamdan? His case is on remand to Judge Robertson’s district court after the successful Supreme Court decision of last June. Lyle Denniston has noted a long list of constitutional issues being presented this time around.
An interesting amicus brief for Hamdan has been filed by retired Judge Advocates General and can be found here.

Another matter floating around like a bad smell may yet return to haunt the government. That’s the case of the German citizen Khaled El-Masri, who was kidnapped by the CIA in Macedonia and mistreated in Afghanistan before being released in Albania, of all places. A case of “mistaken identity”, the US claims.

Aziz Huq reports how El Masri, who was deported the last time he tried to enter the US, will be admitted soon for an appeal.

He is appealing against a “state secrets” dismissal of his civil damages suit against the US government, which was argued in the 4th Circuit Court of Appeals on November 28.

Dana Priest of The Washington Post has more on his case.

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In a final irony, Democracy Now’s Amy Goodman has discovered that Donald Rumsfeld’s palatial estate on Maryland’s Eastern Shore was once (before the US Civil War) the property and workplace of Edward Covey.

He was a notorious slave breaker who operated a corrective service for other plantations having difficulties with their slaves.

One of his “visitors” was Frederick Douglass, the famous American abolitionist whose home, Cedar Hill, is now a museum in Washington.

The name of Covey’s establishment and Rummy’s estate? Mount Misery.