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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.