Sunday, December 30, 2007
Friday, December 28, 2007
Ziad Saleh Muhammad Al-Bahooth ISN 272
Mish`al Sa`d Abdulaziz Al-Rasheed ISN 74
Jameel Ali Atyan Al-Ka`bi ISN 216
Khaled Milweh Shaye` Al-Qahtani ISN 439
Nayef Fahd Mutlaq Al-Otaibi ISN 436
Abdullah Aydha Abdullah Al-Mutrafi ISN 005
Abdullah Aali Nayef Al-Otaibi ISN 243
Bandar Ali Abdulaziz Al-Rumaihi ???
Abdulrahman Nashi Badi Al-Otaibi ISN 268
Abdulhakim Abdulrahman Abdulaziz Al-Moosa ISN 565
Saturday, December 22, 2007
An American Lawyer's Fight Against Guantanamo Goes Through Switzerland
By Luis Lema Le Temps
Wednesday 19 December 2007
A seriously ill detainee is denied medical care by the Americans. Berne is solicited.
Candace Gorman spent last weekend at Guantanamo. She no longer counts the number of times she's gone to the American detention center, "maybe eight or nine." A Chicago lawyer for twenty-five years, she has, as she says herself, "largely given up her practice" to conduct a battle against her government the last several years. As a volunteer, she receives neither pay nor expense reimbursement of any kind. She wants, she repeats, to "remedy the injustice" to which one of the Guantanamo detainees is victim.
Her client's name is Abdul Hamid al-Ghizzawi. He was thirty-nine years old when he was captured in Afghanistan in 2001. His crime? Being Libyan in the wrong place at the wrong time. When he was captured, his lawyer reminds us, the Americans were inundating the country with tracts calling for Arab "terrorists and criminals" to be handed over. They promised astronomical bounties, enough to "feed your family and your village for the rest of your life." Married to an Afghan woman, al-Ghizzawi owned a little grocery store in Jalalabad. He was arrested by the Northern Alliance, put in a truck, sold to the Americans, and then transferred to Guantanamo.
Candace Gorman is convinced that the man is entirely innocent. Placed under a regime of exceptional justice, he does not enjoy the usual rights and recourse of defense. However, at the end of 2004, the members of a military tribunal agreed to acknowledge that the Libyan, like 45 other Guantanamo detainees, could not be described as an "enemy combatant." Some weeks later, however, other hearings were organized and those decisions were annulled. The lawyer, who has transcripts of those hearings, is persuaded that the about-face has one rationale only: the military was embarrassed to have so many detainees on its hands whose innocence had been acknowledged. The rules of the game were changed.
The Harshest Unit
Instead of being freed, Al-Ghizzawi was, quite the opposite, transferred to Camp 6, the harshest unit at Guantanamo. When his lawyer visited him for the first time a year ago, she found her client chained to the floor, kept in virtually complete isolation in a steel cell with no windows. She very quickly realized that the man was seriously ill. The camp doctors confirmed that he was infected with chronic Hepatitis B, and perhaps tuberculosis also. They declared that the detainee refused medical care. But they rejected his lawyer's demand for medical management and supervision.
"I knew the military would never allow him to be cared for in the United States. So I tried abroad," Candace Gorman explains. Through a chain of circumstances, she came upon the name of JŸrg Reichen, liver specialist at the Berne hospital. She went to meet him in Switzerland. And the doctor filed a statement with an American district court and then with the Supreme Court. "I tried unsuccessfully to obtain a diagnosis," JŸrg Reichen confirmed over the phone. "And I alerted my 'colleagues' at Guantanamo as to what they should do with a proven case of hepatitis B."
The Swiss doctor has already gathered the funds necessary to care for Abdul Hamid al-Ghizzawi at the Berne Hospital. A proceeding, he insists on making clear, that "will not cost Swiss taxpayers a penny." The lawyer has addressed the [Swiss] Federal Department of Foreign Affairs. But the FDFA says it is unable to intervene as long as the Bush administration does not present a request for admission to Switzerland to receive medical care. Now, according to the lawyer, "it's clear that the United States will never make an official request. That would amount to admitting its own policy failures."
"A Dead Man" If ...
Yet there's no time to waste. A few days ago, 12 Guantanamo detainees were sent to Pulcharkey prison in Kabul, for which the Americans have just finished building a new wing. The authorities' wager: to bet on the fact that the detainees will escape American jurisdiction there and will not be able to be defended by their lawyers. "It's Guantanamo's Guantanamo," Candace Gorman sums up. And her contacts in Washington have assured her that her client's name is on the list of those who will be sent next to that high security prison which has no medical services. Specialist JŸrg Reichen's opinion allows no appeal: If Al-Ghizzawi is sent to Afghanistan, he's a dead man."
Indeed, "[e]very chimney was guarded."
Elf appears courtesy of "Billionaires for Bush."--
If you are looking to make a donation to an organization that is fighting every day to uphold the constitution please think about sending a check to the Center for Constitutional rights in NYC.
NOTE ON WATERBOARDING
So there's an Andrew McCarthy article in the NRO that pretty much sums up the talking points of the apologists these daze in the wake of the CIA's admission that it destroyed video and audio tapes of detainees being tortured by water-boarding and other means....
"Regardless of what the revisionist Left is now saying, the only bright-line limit on the treatment of alien enemy combatants held outside the United States in 2002 was the federal law against torture. The United States did not outlaw cruel, inhuman and degrading treatment when it ratified the international anti-torture treaty in 1994 -- it was not until 2005 that such treatment overseas was outlawed, and even then only ambiguously, no matter what Senators John McCain, Patrick Leahy, and others now claim."
Andrew McCarthy, THE CIA INTERROGATION TAPES, NRO (2007.12.21).
Now I'd just like to point out to one and all, especially those of you who are journalists, that what Mr. McCarthy claims not only isn't true, it's obviously untrue to the degree of certainty. To wit...
By my tally, these interrogations and the subsequent destruction of the tapes involved possible violations of the following statues (note that this discussion excludes Title 10 USC Ch. 47, which is the Uniform Code of Military
18 USC § 371 (Conspiracy to commit offense)
18 USC § 1201 (Kidnapping)
18 USC § 1505 (Obstruction of proceedings before departments, agencies, and
18 USC § 1509 (Obstruction of court orders)
18 USC § 1512 (Tampering with a witness, victim, or an informant)
18 USC § 1519 (Destruction, alteration, or falsification of records in Federal investigations and bankruptcy)
18 USC §§ 2340-2340B (Torture)
18 USC § 2441 (War crimes)
There really isn't much room for doubt about several of those, and I don't believe there's any serious question water-boarding is in fact torture either.
Anyone who thinks otherwise should read Evan Wallach's authoritative legal study of the subject:
Evan J. Wallach, DROP BY DROP: FORGETTING THE HISTORY OF WATER TORTURE IN U.S.
COURTS, 45 Colum. J. Transnat'l L. 468 (2007), draft version available at:
But the kicker here is that it doesn't really matter in regard to the destruction of the tapes, because even if it wasn't torture and didn't also violate one or more of the other statutes I've mentioned, the kicker is 18 USC § 113, which covers assaults within the special maritime and territorial jurisdiction as defined by 18 USC § 7. That statute includes a very bright line indeed, simple assault. Personally, I think the only way water-boarding wouldn't "shock the conscience" is if someone didn't have one, but set that
How could water-boarding not be at LEAST simple assault, if not one of the more aggravated forms?
There's no way that water-boarding, sleep deprivation, and forcibly induced stress don't rise to that level, hence the question of "is or isn't it torture?" is irrelevant to the question of "is or isn't it a crime?" It clearly WAS a crime, because it clearly WAS an assault even if it wasn't torture.
And I really wish someone would plaster that simple fact on the front pages of the NY Times, the Washington Post, and every other newspaper in the country RIGHT NOW. These folks aren't just criminals, they are sloppy, wanton criminals.
Thursday, December 20, 2007
Roger Fitch Esq • December 17, 2007
Our Man in Washington
The Guantanamo “war crimes” trial of Salim Hamdan, Osama bin Laden’s one-time driver, began the other day.
He is charged with conspiracy and providing material support for terrorism.
It was the first time the US had produced a witness against any “enemy combatant” in the “war on terror”, before a judge of any court.
Think about that.
Six years ago George Bush declared Hamdan was an “enemy combatant”. And for six years the US government has successfully obstructed proof that he is not.
At present, the evidence being presented by the Pentagon is concentrated on the question of whether Hamdan was a combatant or a civilian.
However, assuming Hamdan is found to be a combatant, and an “unlawful” one, there still remains the little problem that he stands charged in a military commission with civilian offences.
Before proceeding, the Department of Justice lawyers who are assisting might want to read s.950p of the Military Commissions Act 2006.
It states quite clearly that the Act’s purpose is to “codify offences that have traditionally been triable by military commissions” and that the MCA “does not establish new crimes that did not exist before its enactment”.
Of course, s.950v (“crimes triable by military commissions”) proceeds to do just that, i.e. create a number of new and retrospective offences unknown to the law of war, and therefore, unknown to military commissions.
Conspiracy was specifically condemned, in Hamdan’s very own case, by a plurality of the Supreme Court. As for “material support for terrorism”, that, like conspiracy, has never been a war crime, despite its use against David Hicks.
Hicks’ case only succeeded with a guilty plea and Australian government complicity.
* * *
Across the Atlantic, the Bush administration has informed a British court that the US has the right to kidnap people in the UK.
This remarkable claim provoked editorials as far away as India.
In the same week, a Canadian court ruled that the US is no longer a safe place to send refugees.
Yet it may be American courts that present the gravest danger to the scofflaws of the Bush administration.
Bear in mind that a number of federal judges in the DC habeas cases have ordered the government not to destroy evidence.
At the same time, other federal courts have ordered the production of relevant CIA and FBI evidence in civil trials or FOI claims, e.g. by the ACLU.
In these cases the government has repeatedly claimed that such evidence – the very kind it now acknowledges – either did not exist or had never been created. These statements might now be seen to be false. Judges could be seriously annoyed.
The trouble began with the government’s recent admission in Leonie Brinkema’s (illustration) federal court in Virginia that it had been untruthful during the trial of Zacharias Moussauoi, the only alleged 9/11 conspirator to be tried in the US.
Here’s the US Attorney’s letter to the judge admitting that the CIA “mistakenly” denied the existence of certain video and audio evidence.
Leonie Brinkema is also the judge in the Al Timini terrorism case, and has ordered the government to reveal evidence in that case as well – withheld by the government even from the prosecution – or face dismissal. The Washington Post has more.
The final blow for the government came this month. In response to a New York Times investigation the CIA Director, Michael Hayden (pic), said the CIA had made, and then destroyed, videos of “harsh interrogations” of two of the “high-value” detainees now being held in Guantanamo.
Slate has a handy history of the events leading up to this latest scandal.
The two men are Abu Zubaydah and Abd al-Nashiri, both of whom are said to have been “waterboarded” by the CIA. One of the CIA agents involved has since come forward. Another member of a “high value” interrogation team has also been talking.
Everyone seems to forget that the water cure, an ancient practice, used to be considered a crime.
Unfortunately, for the government, the Abu Zubaydah videos could be the very ones that might have helped Moussaoui in his case – and they are the ones the government told Judge Brinkema didn’t exist.
At the same time, undaunted by all this, the government may still intend to use such “waterboard evidence” in its Guantanamo military commissions, judging from an op-ed by recently-resigned Chief Prosecutor Moe Davis.
Col. Davis strongly implies that he resigned under pressure from above to use such tainted evidence.
In the latest scandal, the CIA at first claimed everything had been done properly, but within a day had adopted a contradictory, scapegoat explanation as blogger Scott Horton notes.
A DoJ investigation has now begun , and there will likely be Congressional hearings.
Andrew Sullivan (pic) observed in the Atlantic blog that the latest CIA revelation of missing tapes was not the first such admission – the recent terrorism case against Jose Padilla in Miami was another.
Also, back in 2002, a US district court in New York apparently relied on secret evidence from Abu Zubaydah at the time the government sought a warrant to hold Padilla as a material witness.
The judge in that case was Michael Mukasey, our new Attorney General. Perhaps this will motivate Mukasey to investigate.
The news of Abu Zubaydah’s “torture tapes” drew the interest of lawyers for Majid Khan. Khan, from Baltimore, is the only “high value detainee” who’s been allowed a lawyer.
As a result, he’s the first to talk about enhanced interrogation.
The Center for Constitutional Rights has filed a Motion for Preservation of Torture Evidence in the DC Court of Appeals.
Lawyers for Yemeni detainees (the Abdah case) have also gone to court – Henry Kennedy’s – and here’s the motion.
Scotus Blog has more.
Possible spoliation of evidence has led another group of detainees to sue in Richard Roberts’ court. They had prudently sent the CIA a copy of Roberts’ order forbidding destruction of evidence in 2005, before the date the torture tapes were destroyed.
Finally, British lawyer Clive Stafford Smith (pic) urged the CIA not to destroy the “gruesome” photos which he says exist of the, uh, genital mutilations that his client Binyam Mohammed endured in Morocco when sent there by the CIA.
Mr Mohammed reports that a women agent who interrogated him claimed to be a Canadian.
There have previously been verified reports of CIA interrogators impersonating FBI agents, and even defence lawyers.
Now we have this slander by the CIA of our worthy neighbours, the Canadians.
At least the CIA hasn’t tried to pass off its agents as Australians. Even Meryl Streep couldn’t manage that, although she is said be a most convincing CIA operative in the new film Rendition.
Thursday, December 13, 2007
another plane landed today to take more prisoners away....
it always seems to take a good 24 hours for the planes to leave so I might not be able to post the who what where etc...
I will be on my way back to Guatanamo on saturday...
but I will report whatever I hear tomorrow and early saturday...
and then you will just have to wait for the remaining numbers until I return....!
Big question... will we be down to 275 when I return?
To read the entire article click on the title.
Afghanis transferred yesterday…
Ghulam Rohani, ISN 003 (if cleared for transfer attorney not told)
Abdullah Wazir Zadran, ISN 976 (cleared for transfer in 2006)
Dr. Hafizullah, ISN 1001 (cleared for transfer in 2007)
Abdullah Mujahid Haq, ISN 1100 (cleared for transfer in 2005)
Abdul Matin (ISN 1002) (not cleared for release)
Gul Chaman (ISN 1021)
ISN 222 wrongly identified by our military as "Omar Abdullah al Kunduzi" (it should make you wonder how they could investigate this man when they couldn't even get his name straight! I will update when I get the correct name from his attorney.)
Abdul Akhouzada (ISN 954) (corrected) (not cleared for release)
Abdul Rauf Aliza (ISN108)
Salim Muhood Adem (ISN 710). (released for transfer more than 2 years ago).
Adel Hamad (ISN 940) (released for transfer more than 2 years ago).
A note on the two Sudanese men: They are now safe with their families. They arrived at Khartoum airport in the early hours of today and were handed over to the Sudanese intelligence authorities. As they got down from the military plane they were given a set of Sudanese clothes to wear instead of the white Gitmo robe. They were then taken to hospital for medical examination and taken afterwards directly to their homes were they were reunited with their families around 5am. They were excellently treated by the intelligence officers who received them at the airport. They were told that they were not wanted any more by the intelligence and were asked to get in touch with those officers should they need any help.
Wednesday, December 12, 2007
Tuesday, December 11, 2007
So much for these men being the worst of the worst....
It was just announced that 15 men were transfered... 13 to Afghanistan and 2 to Sudan. As we figure out who the men are I will post another update...
Lawyers Assert that Pentagon Overstates Ex-Detainee Threat
by Josh White Washington Post Staff Writer
Tuesday, December 11, 2007
A Seton Hall law professor contends that the Defense Department has overestimated the number of former Guantanamo Bay detainees who became involved in terrorist activities after they were released from the military prison.
Bush administration officials have long said that numerous former Guantanamo detainees have turned up on battlefields or have become involved in unspecified "anti-coalition militant activities." Defense officials put the number at 30 in a news release in July.
The Pentagon cited seven former detainees by name, saying they turned up on battlefields after leaving the prison, and it said there are 23 others who became involved in unspecified terrorist activity but did not name them.
In material they will deliver to a congressional committee today, however, Mark P. Denbreaux and his son, Joshua, who represent Guantanamo detainees, said the data lack specificity and include some former detainees who did nothing more than speak out publicly about their captivity.
They assert that the Pentagon has cited only 15 former Guantanamo detainees who have become involved in terrorist activities after their release.
Defense officials said yesterday that they have evidence about all 30 who, they say, participated in combat or lent support or financing to terrorist organizations.
"It doesn't matter if it's seven, 14, 30, or 50," said Bryan Whitman, a Pentagon spokesman. "The point we're trying to make is that we assume some risk in this. Even one is too many."
Mark Denbeaux, director of the Seton Hall Law School Center for Policy and Research, plans to present the information to a Senate Judiciary subcommittee hearing today on the legal rights of Guantanamo detainees. Denbeaux has been critical of Pentagon data regarding the threats the
detainees pose, and his previous reports have drawn fire from defense officials.
"Department of Defense senior officials have publicly claimed that dozens of former Guantanamo detainees were captured or killed during battles with American forces following their release," Denbeaux wrote in a prepared statement for the committee. "This public representation was entirely inaccurate every time it was uttered."
Tom Malinowski, Washington advocacy director of Human Rights Watch, also has disputed the Pentagon's assertions about the number of detainees who have returned to battle. He said it is part of a systematic effort to show that the numbers do not add up.
"Some people probably have gone back to, or begun for the first time, armed activity against the United States after leaving Guantanamo, but that number is clearly very small," Malinowski said.
The Torture of Abdul Hamid al-Ghizzawi
By Leonard Fein
In July 1948, President Harry Truman signed Executive Order 9980, which was the beginning of the end of racial discrimination in the American armed forces. It was more than six years later that the last all-black unit was dissolved, and it wasn’t until July 1963 that the military’s responsibility was expanded to include the elimination of off-base discrimination of black servicemen.
Here is a thought experiment: Imagine what it would have meant for America today had these steps not been taken, had the military remained segregated. Plainly, and in addition to the continuing insult to black Americans and the reduced effectiveness of the military itself, the nation would be markedly disadvantaged on the world stage.
The time when formal racial discrimination could be indulged in by an international power was plainly over (and then some). And it was just 44 years ago that such discrimination was terminated.
Now flash forward 44 years. Is it thinkable that the United States, if it seeks to remain a great power, can still persist in its violation of international law and common codes of decency, claiming to itself the right to torture people it thinks may have information that would help defend this nation from its enemies?
Well, perhaps you will say that if there’s a ticking bomb and the only way to find where it’s been hidden is to torture your captive, torture may be excused. Surely we do not torture gratuitously, without some urgent (albeit inherently inadequate) purpose?
But: Consider the case of Abdul Hamid al-Ghizzawi, a Libyan meteorologist who has now been held in Guantanamo for more than five years. Al-Ghizzawi has had hearings before two Combatant Status Review Tribunals.
A November 2004 tribunal unanimously determined that there was no factual basis for concluding that he should be classified as an enemy combatant. Ordered to re-open its hearing, the tribunal came again to the same unanimous conclusion.
Shortly thereafter a second tribunal was formed and held a hearing in Washington, D.C. — without the knowledge of Al-Ghizzawi — and decided to find him to be an enemy combatant, this despite the fact that no new evidence was introduced.
It is impossible to say how many of those being held in Guantanamo are, indeed, enemy combatants. The processes that would tell us that are deeply flawed, deeply and fatally. (See, for example, the testimony of former Lieutenant Colonel Stephen Abraham before the House Armed Services Committee on July 26, 2007.)
But it is possible to know what happens in Guantanamo. We know about Al-Ghizzawi because of a detailed statement of the Committee on Human Rights of the National Academy of Sciences, the National Academy of Engineering and the Institute of Medicine.
Since Al-Ghizzawi arrived at Guantanamo, his health reportedly has deteriorated dramatically. He evidently suffers from hepatitis B and tuberculosis, but has received no medical treatment for either condition despite his repeated requests and those of his lawyer.
On December 7, 2006, he was among several hundred detainees randomly selected and moved to the newest detention camp at Guantanamo, Camp 6, which was designed to hold the majority of the detainees. According to Amnesty International, and in contravention of international standards, all detainees in Camp 6 are held under conditions of “extreme isolation and sensory deprivation for a minimum of 22 hours a day in individual steel cells with no windows to the outside.”
Their cells reportedly are extremely small. The only source of light is fluorescent lighting that is on 24 hours a day and the only air is air-conditioning, both of which are controlled by the prison guards. The detainees reportedly are allowed two hours of “recreation time” a day to be spent in a metal cage measuring four feet by four feet. (That’s 1/3 the size of a ping-pong table.)
Al-Ghizzawi’s lawyer says that his guards frequently give him his “rec time” in the middle of the night or, sometimes, in the middle of the day when the cage is in the hot sun. Detainees in Camp 6 have no access to radio, television or newspapers. They are given one book a week.
According to his lawyer, Al-Ghizzawi’s eyesight has deteriorated so significantly that he is now unable to read. Thus he now spends his time pacing in his cell. All of the detainees at Guantanamo reportedly are forbidden telephone calls and family visits, and most are not allowed to touch another human being. The detainees are not given any blankets. Their only cover is a plastic sheet.
There is no reason to believe that Al-Ghizzawi’s treatment is exceptional. If his is at all an exceptional case, it is exceptional because he has twice been unanimously declared not to be an enemy combatant.
Canons of crisis, behind us, before us, volley and thunder, deafen our sensibilities. It is hard to focus on one man unjustly tortured — for surely the circumstances of al-Ghizzawi’s detention amount to torture — or even on hundreds perhaps unjustly held, cruelly treated.
And it is hard to know how much damage Guantanamo does to perceptions of America by others, to our blundering effort to “win the hearts and minds” of people worldwide. (The end of segregation in the military, many historians believe, owed less to Truman’s courage than his concern with international opinion, what with the Cold War and the emergence of the Third World.)
The CIA destroyed the tapes of its interrogations; we can only speculate regarding what horrors they contained, what disgust they’d have provoked. But there’s horror aplenty that continues, with our permission, 24/7 — torture of named people in a named place.
SOURCE: The Jewish Daily Forward
Sunday, December 9, 2007
Clive Stafford-Smith, the legal director of Reprieve representing Mr Mohammed, said about the evidence against his client, "Given the opportunity, we can prove that the evidence was the fruit of torture. Indeed, we can prove that a photographic record was made of this by the CIA. Through diligent investigation we know when the CIA took pictures of Mr Mohammed's brutalised genitalia, we know the identity of the CIA agents who were present including the person who took the pictures (we know both their false identities and their true names), and we know what those pictures show."
Reprieve says it will be pressing for criminal prosecutions against the CIA agents alleged to have carried out the torture.
Last week it emerged that the CIA destroyed hundreds of hours of videotapes showing the torture of detainees held by the US.Click on the title to go to the article.
Friday, December 7, 2007
The British Government requested the release of all five men in August after previously refusing to intervene as they were not British citizens.
Jamil el-Banna, Omar Deghayes and Abdenour Samuer will come back to the UK, while Shaker Abdur-Raheem Aamer will return to his native Saudi Arabia.
(click on the title for more information from the BBC)
But my question is ... if the request was made in August why are they still there?
update: Of the four men being released only one, Jamil El Banna, was actually on the list as being cleared for transfer.
Roger Fitch Esq • December 7, 2007
Our Man in Washington
”The Supreme Court Faces the Kangaroo Courts”.
That’s the headline on an article in FindLaw’s Writ by Joanne Mariner apropos the oral arguments in Boumediene/Al Odah, the blockbuster cases on detainee treatment heard on Wednesday (Dec. 5).
You can listen to tapes of the hearing (scroll down the page a bit) and Scotusblog also has links to the briefs and arguments.
The Wall Street Journal backgrounds the cases with a discussion of the 1992 US District Court ruling that the constitution applied to Haitian refugees sent to Guantanamo by Bush the Elder.
The National Law Journal also carries more.
The Al Odah case is the latest iteration of the companion case to Rasul (David Hicks) decided in 2004. David Cynamon, the lawyer representing the Al Odah petitioners (Kuwaitis), discussed the case in The Washington Post.
The Boumediene case presents quite different facts. The six Bosnian-Algerian petitioners were arrested in Bosnia, investigated and cleared by the Bosnian government and ordered released by its supreme court.
Nevertheless, the men ended up in Guantanamo. Mother Jones Magazine has more.
The US accuses the men of wanting to bomb the US embassy in Sarajevo, an act which seems unrelated to September 11 or the war in Afghanistan.
It is a connection to these, however, that the US Supreme Court in 2004 found was necessary for Congress’s “Authorisation to Use Military Force” to have any effect. Only the AUMF gives the President his authority to capture and detain.
When Rasul and Al Odah were decided in June 2004, it was assumed the detainees would proceed to have the habeas cases the Supreme Court said they could have in Washington DC.
However, the Hamdi case decided the same day suggested that something short of a DC district court might suffice to determine combat status, and so the sham Combat Status Review Tribunals were born.
The Boumediene case is about these administrative courts, never authorised by Congress, that the Pentagon set up to avoid both DC habeas hearings and existing US military law and regulations that govern the treatment of captured enemy soldiers.
Though still on the books, that body of statutory law can’t be used because it follows the Geneva Conventions and the law of war. It protects prisoners from coercive interrogation, mistreatment and substandard trials, the very things the government wants.
* * *
There are other kangaroo courts, authorised by Congress in the Military Commissions Act 2006. These are used to charge, as so-called war criminals, fighters who kill or injure Americans (e.g. Omar Khadr) or civilians who may oppose Americans and are, if anything, ordinary criminals (e.g. bin Ladin’s driver, Salim Hamdan).
The MCA has only been used once, to convict David Hicks of “material support for terrorism”.
That not one of these is a valid war crime under the Geneva Conventions is of no moment to the Bush administration.
Instead, the State Department is busy campaigning to retrospectively redefine the Conventions so as to protect US officials themselves from war crimes charges – for bringing fake, substandard “war crime” prosecutions.
Three men are facing trial in the “big” kangaroo courts, i.e. military commissions: the Canadian Khadr, the Yemeni Hamdan (who was arraigned on Wednesday Dec. 5) and an Afghan, Mohammad Jawad.
By the day of Khadr’s arraignment (Nov. 8) his US lawyers had been dismissed and the Canadian lawyers had fallen out with his military counsel.
As the judge, Army Col. Peter Brownback, noted, the arraignment was three years to the day since he had been stopped mid-hearing in David Hicks’ case by a DC District Court stay issued in Hamdan’s case.
Observers reported Khadr’s arraignment here and here.
As it turned out, the matter was adjourned without determining the jurisdictional question – whether Khadr’s alleged combatant status was unlawful – and with the revelation that the Pentagon had suddenly “discovered” potentially exculpatory evidence.
A newly disclosed order by Brownback reveals that the identities of witnesses may be kept secret from Khadr when the trial takes place.
Finding this out was not easy. In line with the Bush administration’s general policy that what you don’t know can’t hurt us, the Pentagon has been refusing to inform the media or public about Guantanamo “legal” developments.
Under the old “presidential” military commissions, the motions and orders were promptly posted on the internet, where they can still be read.
Now, however, the government prefers private email transmissions to court filings. And they send blind copies to whomever they please, including presumably the White House.
This lack of access to filings in the military commissions was the subject of a complaint by the major news organisations, leading to the release of 694 pages of emails, motions and orders in the Khadr case, and the transcript of the November arraignment.
In his response earlier this year to the government’s motion for reconsideration of dismissal, Brownback seemed to imply the relevance of Geneva Convention standards in determining who is an “Unlawful Enemy Combatant”.
However, an order disclosed in the new Khadr documents contains this alarming statement:
“The parties are advised that matters presented, both factual and legal, concerning the issue of designation as an UEC, must be focused specifically on whether or not the accused meets the definition of UEC as established by the MCA (10 USC 948a(1))... Other matters which might affect jurisdiction (i.e., international law, constitutional law, criminal law) will not be heard in conjunction with this threshold or initial determination of jurisdiction.”
Brownback may simply be following the appeal decision in the Court of Military Commission Review, but the judge has been making other, troubling, statements.
For instance, he doesn’t think that the Supreme Court, in the Hamdan case, found the MCs to be “illegal” for failing to meet Geneva standards, and he believes Al Qaeda is a group dedicated to the spread of Islam.
After the Khadr adjournment, the Pentagon threw caution to the wind and leaked a captured video to CBS’s 60 Minutes.
This video is claimed to show Khadr making bombs and would have been proffered at his hearing.
* * *
The Pentagon’s underhanded behaviour only drives more whistleblowing from within by both defence counsel, e.g. Lt. Col. Colby Vokey (pic) and prosecutors, e.g. Lt. Col. V. Stuart Couch.
Col. Couch, now an appellate judge of the Navy-Marine Corps Court of Criminal Appeals, was invited to testify to Congress about his experience, but was forbidden to do so by the Pentagon General Counsel, William Haynes. So much for judicial independence.
Meanwhile, another Guantanamo whistleblower, Lt. Col. Stephen Abraham, has filed an affidavit in the Hamad case elaborating on the failures of Combat Status Review Tribunals.
Historian Andy Worthington (pic) provides some comments on Abraham’s latest revelations.
November also saw the leak of the Guantanamo Standard Operating Procedures Manual.
It authorises unlawful behaviour – some of it previously denied – e.g. not allowing Red Cross access.
Leading psychologists were quick to note the unethical practices required of their profession.
* * *
In the end, even Guantanamo is too temperate for this government. Something more rigorous is required.
According to reports reaching the well-informed Scott Horton, “the Administration has put together a group of scholars headed by a right-wing activist judge to craft legislation to introduce a new court of Star Chamber, perhaps to be floated in the coming year”.
Thursday, December 6, 2007
The recordings were not provided to a federal court hearing the case of the terror suspect Zacarias Moussaoui or to the Sept. 11 commission, which had made formal requests to the C.I.A. for transcripts and any other documentary evidence taken from interrogations of agency prisoners.
C.I.A. lawyers told federal prosecutors in 2003 and 2005, who relayed the information to a federal court in the Moussaoui case, that the C.I.A. did not possess recordings of interrogations sought by the judge in the case. It was unclear whether the judge had explicitly sought the videotape depicting the interrogation of Mr. Zubaydah.
“This is a matter that should have been briefed to the full Intelligence Committee at the time,” an official with the House Intelligence Committee said. “This does not appear to have been done.
Staff members of the Sept. 11 commission, which completed its work in 2004, expressed surprise when they were told that interrogation videotapes existed until 2005.
“The commission did formally request material of this kind from all relevant agencies, and the commission was assured that we had received all the material responsive to our request,” said Philip D. Zelikow, who served as executive director of the Sept. 11 commission and later as a senior counselor to Secretary of State Condoleezza Rice.
“No tapes were acknowledged or turned over, nor was the commission provided with any transcript prepared from recordings,” he said.Daniel Marcus, a law professor at American University who served as general counsel for the Sept. 11 commission and was involved in the discussions about interviews with Al Qaeda leaders, said he had heard nothing about any tapes being destroyed.
If tapes were destroyed, he said, “it’s a big deal, it’s a very big deal,” because it could amount to obstruction of justice to withhold evidence being sought in criminal or fact-finding investigations.John Radsan, who worked as a C.I.A. lawyer from 2002 to 2004 and is now a professor at William Mitchell College of Law, said the destruction of the tapes could carry serious legal penalties.
“If anybody at the C.I.A. hid anything important from the Justice Department, he or she should be prosecuted under the false statement statute,” he said.
Is the CIA above American Law? How many laws has this administration broken in the name of the "war on terror." Do we really want American government agencies torturing people and then destroying the evidence? When will someone be held accountable?
Wednesday, December 5, 2007
The rebuttal by Seth Waxman said it all.... one of the many inadequacies under the DTA is that the prisoner is not allowed to know who the witnesses are . In one case however the name of the main witness/evidence against the prisoner was disclosed... a man the government claimed was a close friend of the prisoner and who was part of al-Queda and who supposedly blew himself up as part of a terrorist plot. The prisoner stated when he heard that persons name that he never knew that the man was part of al-queda. After the prisoner became represented by an attorney the attorney did research on the supposed al-queda friend... turns out he wasn't a terrorist, wasn't self detonated... and was alive, well, and working in Dresden Germany... Under the DTA the prisoner never would have been allowed to discover or challenge the governments story tying him to al-Queda....
This is the law that abolished the writ of habeas corpus for the Guantanamo detainees and all non-citizens.... and perhaps even citizens....
A German intelligence officer said at the time (back in 2002) that the, "USA considers Murat Kurnaz's innocence to be proven," and "He is to be released in approximately six to eight weeks." Years later Kurnaz was still at Gitmo.
The process is "fundamentally corrupted," said Baher Azmy, a professor at Seton Hall Law School who represents Kurnaz. "All of this just reveals that they had the wrong person and they knew it."
He added: "His entire file reveals he has no connection with terrorism. None. Confronted with this uncomfortable fact, the military panel makes up evidence" to justify its claim that only real terrorists are incarcerated at Guantanamo Bay.
German and American intelligence officers interviewed Kurnaz in September 2002, records show. They jointly concluded that nothing was linking the man from Bremen to terrorist cells or enemy fighters and that he should be freed. In a memo dated May 19, 2003, the commanding general of the Criminal Investigation Task Force, a Pentagon intelligence unit that interrogates detainees and collects evidence about them, wrote that "CITF is not aware of evidence that Kurnaz was or is a member of al-Qaeda. CITF is not aware of any evidence that Kurnaz may have aided or abetted, or conspired to commit acts of terrorism."In spite of this the government made up charges to claim that Kurnaz should be detained. They wrongly claimed that he knew someone involved with a suicide bombing and decided to keep him. Is it legal in our country to hold someone indefinitely because they know someone involved in a crime? Is this the American justice system that we want?
After the Supreme Court ruled in 2004 that Guantanamo Bay prisoners could not be held indefinitely without fact-finding by an objective tribunal, the Pentagon hastily assembled panels of field-grade officers to serve as Combatant Status Review Tribunals. Since they began, the panels have overwhelmingly supported continued detention of those at Guantanamo Bay, ruling that 534 detainees were "enemy combatants," while only 38 were not.
Clearly the review process at Guantanámo is flawed and biased. If these detainees are ever going to get a fair trial the supreme court will have to act today and make it clear that the executive branch is not above the laws of our constitution and our country.
To read the entire article click on the title.
Tuesday, December 4, 2007
For the current list you can click on the title.
For the previous list you can click here.
By Spencer Ackerman - December 4, 2007, 8:55AM
Score another one for Wikileaks. This morning -- thanks to a source known only as "Peryton" -- the open-source website for whistleblower documents published the 2004 manual for U.S. military detention operations at Guantanamo Bay. You can read it, with commentary, here.
Last month, Wikileaks published the 2003 edition of the manual. Among other controversial provisions, the manual instructed officials to hide certain detainees from the International Committee of the Red Cross, a practice that the military repeatedly denied was in existence at Guantanamo. Spokespeople for the U.S. military's Southern Command, which oversees Guantanamo Bay, said the manual was outdated and assured that some instructions that violated the Geneva Conventions were no longer in effect.
It's unclear so far what portions of the 2004 manual remain in place. (Maybe Peryton will enlighten us in the future.) The Washington Post's Josh White quotes Guantanamo Bay spokesman as saying that "things have changed dramatically" at the camp since 2004. But Wikileaks finds that, in key areas, the 2004 manual didn't change so much from 2003:
Systematic denial of Red Cross access to prisoners remains. The use of dogs remains. Segregation and isolation are still used routinely and systematically – including an initial period of at least 4 weeks "to enhance and exploit the disorientation and disorganization felt by a newly arrived detainee", only terminated at the behest of interrogators. Both manuals assert that detainees will be treated in accordance with the "spirit" of the Geneva conventions "to the degree consistent with military needs", but never assert that the conventions are actually being followed at Guantanamo. Put into practice, neither manual complies with the Geneva conventions.
So is the past prologue? We'll find out. For now, though, dig into the 2004 manual and let us know in comments what you think is most significant.
Monday, December 3, 2007
So the men continue to sit... indefinitely... in the cruelest of conditions... and once again their only hope seems to be our Supreme Court. Chances are the Court will champion their cause once more...only to be ignored by the administration again.
I don't blame Denmark for saying no... but sooner or later some country... somewhere... must help these men...the world cannot sit back and let these men continue to be punished because of the arrogance of the US government.
Our Man in Washington
It seems the Bush administration has scoured the country for useful idiots and found jobs for every one of them, especially those with law degrees.
Some of the appointees requiring Senate confirmation are so fragrant that, like the Federal Election Commission’s chipmunk-cheeked Hans von Spakovsky , they have to be placed through recess appointments.
A leading source for Bush-appointed lawyers and judges has been the Federalist Society, a right-wing alternative to the American Bar Association that grew out of sleeper cells of “conservative” law students disenchanted with their “liberal” professors.
These days, the once-scorned “Federalists” are represented at all 196 accredited US law schools, and in November the group celebrated 25-years of growing government influence (and regressive judicial activism) with a large convention. It was attended by four Supreme Court justices and the putative president of the US.
Law.com has more on the phenomenal success of the Federalist Society, which more recently has inspired the creation of a counter-organisation for “liberal” lawyers, the American Constitution Society.
The Federalist organisation has certainly helped produce loyal Bushies in record numbers, though not all of its recruits have been competent, or honest.
In any case, the Republicans have enjoyed a ready supply of corner-cutting and highly partisan lawyers since the Reagan years, according to the Nation’s Charlie Savage.
Whether lawyers or policy wonks, the same faces tend to resurface in Republican administrations with depressing regularity.
It used to be the case that compromised or discredited officials in the government, e.g. those who had been investigated for malfeasance or charged with crimes, would defer their comebacks till the next time the party was in office, by which time they would have been pardoned or forgotten.
No longer; under the Bush administration, malefactors are recycled in real time.
When Iraqi lawyers came to Washington in an effort to get Republicans to follow the rule of law in Iraq who better was there to show them around Congress than Manuel Miranda?
In a further proof that no crime or misconduct goes unrewarded in the Bush administration, Miranda, the Republican staffer who was sent off in disgrace in 2004 after he hacked the computers of Senate Democrats, has been given a job “promoting democracy” in the comically-named Office of Legislative Statecraft in Iraq.
Meanwhile, during the Thanksgiving holiday, Democrat majority leader Harry Reid had to keep the Senate in session – pro forma, anyway – just to prevent George Bush appointing unsavoury people through his famous misuse of “recess” appointments .
Law prof Marty Lederman of the Balkin Blog has more on this arcane practice.
* * *
Things seem to be happening at the Department of Justice since Michael Mukasey took over as Attorney General.
For starters, a US grand jury has been convened to examine the sins of the Blackwater mercenaries in Iraq.
Lapsed investigations have been reopened, e.g. the Inspector General’s inquiry into warrantless surveillance, and new people nominated, though loyal Bushies all for key positions.
Harper’s blogger Scott Horton has more.
Happily, Mr Mukasey seems to have acted to remove the hated US attorney in Minneapolis, Rachel Paulose .
Now that Ms Paulose is gone, there are calls for Leura Canary, the extremely partisan US Attorney in Alabama, to be replaced, as Scott Horton reports.
Meanwhile, the National Association of Former US Attorneys has met and shared horror stories about recent events at the DoJ.
* * *
In my last post I reported that former Defence Secretary Donald Rumsfeld had been hounded out of France by the process servers for human rights organisations, who laid a torture complaint against him while he was in Paris for a speech.
Unfortunately, the French foreign ministry has instructed the procureur to roll over and dismiss the charges on grounds of governmental immunity, ignoring the now-established Pinochet precedent.
But forget about Paris. Even when Bush administration officials are overseas, the US remains the leading haven for the world’s war criminals.
That’s the drift of the Department of Homeland Security’s own figures.
Curiously, these are not the people being pursued in the US courts for war crimes or terrorism. Former US Attorney Elizabeth de la Vega (pic) has described the official position taken by the Department of Justice (in a Florida case) on war crimes.
As for “successful” terrorism prosecutions in the US, the scorecard prepared by law professors David Cole and Jules Lobel makes depressing reading.
The government has been holding the detainee for almost a quarter of his life without a trial. Now when he is finally about to get his day in kangaroo court he is told that he will not be able to know who his accusers are or what methods the court has made to ensure the validity of the evidence being used against him. Where is justice? How long will this administration continue to try to destroy the basic tenets of our legal system?