Reply brief on medical records and treatment

I am in route back from the base after having seen Mr. Al-Ghizzawi and my other client Mr. Razak Ali. Yesterday the government finally got around to "clearing" my reply brief that was filed with the court last thursday. As you can see the government has been caught in a major (and unforgiveable)lie.
I will update everyone on Mr. Al-Ghizzawi's health when my notes clear. Hats off to Seth at the talking dog (http://thetalkingdog.com/) for his edits and insight.
Click on the title to read the reply.

AL-GHIZZAWI AND A PERSONAL CALL FOR ACT ION (updated)

(I have had requests for a fax number for the judge so that letters can be more timely... as that number is in the public domain I have added it at the end of this post...)

Many of you have asked me for an update after that horrible news that Al-Ghizzawi was told by a doctor at the base that he has AIDS. I had a Reply due today in the District Court in DC and I have spent the week focusing on that document. It is now filed and I am waiting for "clearance" by the government before I can post it.
Immediately after I received Al-Ghizzawi's letter I sent an email to the government attorney who refused to tell me whether or not the report was correct. I filed with the Supreme Court but Chief Justice Roberts denied my emergency motion... I still had no word from the Government on the AIDS report... I filed back in the District Court (where this battle for medical treatment began more than 18 months ago). District Court Judge Bates ordered the government to respond by February 15th and asked them to update the Court on Al-Ghizzawi's medical condition. Finally in a typically snide response the government admitted that Al-Ghizzawi does not in fact have AIDS (the fact that the governmen waited this long to admit the truth...if it is the truth... only convinces me that this was a psychological game being played on Al-Ghizzawi... ) but anyway if it is true the good news is that Al-Ghizzawi does not have AIDS.
I say "if it is true" because what came out in the governments response is the fact that they have admitted in this same response that they have known for 18 months that Al-Ghizzawi's liver condition (from hepatitis B) is worsening... perhaps dramatically (they will never say anything directly) and they have not treated him... The affidavit makes clear that the medical staff at guantanamo does not have a clue how to diagnose or treat hepatitis and liver damage.... at the cost of Al-Ghizzawi's health.
Soon I will be able to post my response and even though much of it is legalize and many of you are not lawyers.... you can figure it out.
And now it is time for Judge Bates to understand that many people are concerned with Al-Ghizzawi's health. Will you write him?
Please keep your letters polite and to the point... but let him know that this is not just about one person.... but about the dignity of a nation of people who care about what is being done in our name... and how this reflects on our nation as a whole... And if you are so inclined to write please do it soon... all of the documents are in this very capable judge's hands as of right now.... and I am off on Monday to visit with Al-Ghizzawi for for two days and how nice it would be to tell him that there was a groundswell of support for his cause by the people of the world.

The Honorable John D. Bates
United States District Court Judge
U.S. District Court for the District of Columbia
E. Barrett Prettyman U.S. Courthouse
333 Constitution Avenue, Northwest
Washington, DC 20001
(202) 354-3433 fax)

A WORD ABOUT OBAMA

--Many have asked me why I did not sign on to the letter by some of the Guantanamo attorneys who are supporting Obama so I would like to take a moment to explain why I could not put my name on that document.
Obama has potential and of course I will vote for him if he is the democratic candidate butObama is NOT the poster child for doing the right thing for the men at Guantanamo. Let me start out by saying that I am from Illinois and when he ran for senate I worked on his behalf… it was exciting when he won that hotly contested senate seat… and then he went to the senate...
His very first vote was for Condi Rice and it went down hill from there… He later voted for either Roberts or Alito (for the Supreme Court) and the outcry from his constituents seemed to give him pause on the other ….
Most importantly he voted for the Detainee Treatment Act (DTA)…. That was the first attempt by congress to do away with habeas corpus...
The list goes on. His official mentor was Liebermann….until Liebermann lost the democratic nomination for his own senate seat.
I met up with Obama at a luncheon/fundraiser in Chicago in the late spring of 2006 (before he decided to run for president) I asked him if he heard a deep sigh coming from the people of Illinois every time he voted… He looked at me in surprise and I started ticking off the things he voted for… and against…. that were very disappointing… (I remembered many of them at that time..)
When I got to the DTA I said to him “I can’t believe that you, as a civil rights attorney yourself, would vote to take away the writ of habeas corpus”and his unfortunate response was “it was going to pass anyway”… I was quite shocked that he made that statement and asked him if that was his "new standard" ... anyway the conversation went downhill from there (ok maybe it wasn’t exactly uphill at any point…)

We all vote need to vote our conscience …. Or, if nothing else... pragmatically….

ButObama should not be held up to what he isn’t and he should not be portrayed as some kind of hero for the gitmo detainees…
by the way Obama did not even bother to show up for the ban on waterboarding a week ago….
Best regards,
Candace

FROM ROGER FITCH AND OUR FRIENDS DOWN UNDER

(Click on the title to go to the original)

Roger Fitch Esq • February 21, 2008
Our Man in Washington
“Guantanamo Six” military commission trial is the opening shot in Republican election year strategy … Yet there’s a problem – most of the alleged “war crimes” occurred before there was a war … Administration’s torture definition finds its roots in health benefit policy
Harper’s blogger Scott Horton has observed that torture is the new litmus test for Bush administration officials:
“If you’re prepared to hedge on whether waterboarding is torture, then you might be counted upon to do anything.”
How else to explain the recent behaviour of leading figures in the government, e.g. the Justice Department’s Michael Mukasey and Stephen Bradbury, the CIA’s Gen. Michael Hayden, intelligence chief Adm. Michael McConnell, Homeland Security’s Michael Chertoff, the State Department’s John Negroponte, the Pentagon’s Gen. Thomas Hartmann.
No sooner had the Attorney General cleared the way for water torture to be classified legal and continued, than General Hayden chimed in with an admission that “waterboarding” had happened, while clearly lying about the number of times.
The very next day, the White House announced it was official policy, as Dan Froomkin reports.
Mukasey then added that in any case, if the Justice Department’s Office of Legal Counsel had once said it was “legal”, he couldn’t investigate it.
Next, the acting head of the OLC, Bradbury, told Congress that, while waterboarding was legal in 2005, it might not be now, but don’t worry, our version of water torture is different. Others disagreed.
As former OLC man Marty Lederman noted, Bradbury’s argument seemed to be, “At least we’re not as barbaric as the Spanish Inquisition”.
One historian claimed it was precisely the same.
According to Slate’s Dahlia Lithwick, it’s all part of a plan.
Vincent Warren of the Center for Constitutional Rights, which represents hundreds of Guantanamo prisoners, summed it up the best:
“At first, they said that they didn’t torture, which we know was a lie. And then they said that they didn’t waterboard, which we know is a lie. Now they’re saying that they do waterboard, but it’s not clear that waterboarding was torture. And now they’re saying it may be torture, but it might not have been torture under the rules a couple of years ago. What they’re trying to do, I believe, is set up a situation where they use the legal framework that they used at the time to be able to avoid a legal classification of waterboarding as torture currently.”
The provocative we tortured and we’d do it again stance seems to have been the opening shot in the Republican election year strategy: a military tribunal at Guantanamo showcasing “high value” detainees, some of whom are known to have been tortured.
* * *
As we know, the Bush administration does nothing extralegal by halves. The “Guantanamo Six” are charged with plotting September 11 and various earlier offences against US lives and property around the world, dating back to 1996.
A list of the 2,973 people killed on September 11 fills 67 pages of the Pentagon’s 90 page charge sheet.
There were 169 “overt acts” constituting the “conspiracy” and other “war crimes”. Of these, only five occurred after September 11 and consisted of such grave crimes as, “recorded many news stories of the attacks for future use in propaganda films” and exulting in their success.
This unseemly claim of credit, after 9/11, for crimes that began 12 years ago, has been transmuted by Pentagon lawyers into crimes against the law of war. Yet there’s a problem.
In the Supreme Court’s Hamdan decision (2006), the plurality said that, for a military tribunal to prosecute war crimes, the acts had to occur after war began, i.e. after September 11:
“Among the preconditions for such a tribunal’s exercise of jurisdiction are, inter alia, that it must be limited to trying offenses committed within the convening commander’s field of command, i.e., within the theater of war, and that the offense charged must have been committed during, not before or after, the war. Here, Hamdan is not alleged to have committed any overt act in a theater of war or on any specified date after September 11, 2001.”
Although the context in Hamdan did not involve an interpretation of the Military Commissions Act, it’s hard to see how a war crime can be committed without there being a war.
No doubt the Bush lawyers will claim that a discrete, pre-9/11 “war on terror” existed.
The charges alleged against the Guantanamo Six all purport to be “war crimes”, as described by the MCA, but only a few – if occurring in a theatre of war – could qualify as war crimes under international law.
Moreover, it’s amazing that the Bush administration believes it can prosecute men it has admitted torturing, e.g. Khalid Sheikh Mohammed.
One stratagem, to send in a “clean team”, has met with derision.
Another defendant, Mohammad Al-Qahtani, is also known to have been tortured, and the Pentagon’s revolting 83-page log of his interrogation is in the public domain.
In fact, in Al-Qahtani’s case, the personal, hands-on involvement of Donald Rumsfeld and the Pentagon General Counsel, William Haynes, is well-established (see my post of August 3, 2006).
* * *
It’s interesting to reflect that the justification of torture began with an August 2002 memo to Alberto Gonzales, penned by John Yoo for Jay Bybee, the then head of OLC.
Yoo found that the infliction of severe physical pain, unless “of an intensity akin to that which accompanies serious physical injury such as death or organ failure”, did not violate 18 USC 2340, the Torture Statute.
Rarely mentioned is the source of that definition. As Yoo noted, it had appeared in US laws “defining an emergency medical condition for the purpose of providing health benefits”.
According to Yoo:
“Although these statutes address a substantially different subject from Section 2340, they are helpful for understanding what constitutes severe physical pain. They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent impairment of a significant body function.”
See? It makes perfect sense.
And what happened to the lawyers?
Jay Bybee was appointed to the 9th Circuit Court of Appeals and John Yoo returned to a tenured professorship at the Berkeley Law School.
Gonzales, at least, is out of work.

Legislative Branch Passes Bill To Ban Torture (Bush Will Veto)

According to CBS news, Bush will veto the bill that passed through congress making it illegal for the CIA to water-board anyone and holding all government agencies to the US Army Field Manual.

The bill passed the Senate 51 to 45, which makes it unlikely to over ride the veto. Presidential candidate John McCain voted against the bill. So much for his anti-torture stance.

According to Sen. Charles Schumer "If the president vetoes the intelligence authorization, he will be voting in favor of waterboarding, plain and simple - no ands, ifs or buts."

Of course that should come as no surprise since the President recently admitting to authorizing the technique and even reserving the right to order water boarding in the future.

Where in the Constitution does it give the President the power to break our laws and torture people?... maybe it is in a signing statement....

UPDATE ON EMERGENCY MOTION

J. Bates entered an order on wednesday giving the government until the 15th to respond to my emergency motion and also telling the government to specifically address the issue of whether the government thinks the Judge has jurisdiction to hear my motion .... and if they don't think that he has jurisdiction to specify what "court or other forum, if any" does have jurisdiction and authority. The judge also told the government to provide up to date information regarding Al-Ghizzawi's medical condition and treatment.
We shall see.....

From Roger Fitch and our Friends Down Under

(click on the title to go to the original...

Roger Fitch Esq • February 8, 2008
Our Man in Washington
The Attorney General says the US can torture if it likes … The proposed American Freedom Agenda Act says the US can kidnap if it likes … Over at Guantanamo smart new portable court rooms have been installed … Pentagon bunglers mistakenly hand over “secret” evidence to the visiting press
The new Attorney General has finally given his views on the water cure. In testimony before the Senate, Michael Mukasey broadly implied that “waterboarding” is legal, and could be used again.
No senator thought to ask why, in that case, the US had tried and imprisoned Japanese soldiers and American GIs for using the same practice (see my post of September 22).
As Salon’s Glenn Greenwald sees it, Michael Mukasey showed himself before the Senate to be “ideologically, a clone of John Yoo and David Addington.”
Mukasey is also blocking an investigation into the crimes of his predecessor, Alberto Gonzales, according to the head of the Office of Special Counsel, Scott Bloch.
Meanwhile, Bush and his AG are pressing ahead with the nomination of the odious Stephen Bradbury as the Assistant Attorney General for Legal Counsel.
Bradbury (pic) “approved” waterboarding in a memorandum written in 2005 when he was acting head of the Office of Legal Counsel.
* * *
Although Mukasey says the CIA may “coerce” if it likes, the agency doesn’t really have the proper skills to do it, according to the Washington Independent.
Moreover, astute CIA officers can foresee a Department of Justice that isn’t run by Republican Party hacks or led by a loyal footsoldier in the neo-con revolution.
Perhaps that explains why CIA operatives are stocking up on professional liability insurance to protect against the legal costs associated with investigations and defending civil or criminal charges.
One policyholder is former CIA capo Jose Rodriguez, the designated scapegoat in the “torture tape” destruction scandal.
For extra insurance, the CIA has imposed new restrictions on its Inspector General.
* * *
Last year I wrote about George Bush’s practice of issuing imperial edicts under his assumed royal prerogatives. I called them “Bushwahs” (see my post of September 4).
A variation of the Bushwah is the notorious “signing statement”. That’s where, rather than actually vetoing an Act of Congress, as the Constitution provides, our sovereign simply signs the Bill and then adds a message that he has no intention of enforcing designated parts of it.
As in the case of so much that Mr Bush does, this is not exactly legal and, in fact, legislation specifically enabling line-item vetoes was ruled unconstitutional by the Supreme Court during Bill Clinton’s term.
Bush’s “administrative” line-item vetoes are not unconstitutional – they are simply void – but they can be quite revealing of the Emperor’s pretended powers.
Take the new Defence Act. It contains provisions inserted by Congress that no funds can be spent to establish permanent military bases in Iraq, or to exercise control of Iraqi oil.
The Act also mandates a commission to investigate military contract fraud, provides new protections for whistle-blowers of such fraud, and requires the president to explain in writing when stonewalling Senate document subpoenas.
Mr Bush rejected them all, but only Charlie Savage of the Boston Globe picked up his signing statements.
The Washington Post’s Dan Froomkin has more.
One congressional response to Bush’s “statements” is a proposed American Freedom Agenda Act 2007.
These days, comically patriotic titles are de rigueur.
There are good things in the Bill. The Military Commissions Act is repealed, and habeas corpus restored.
There is a provision that:
“No civilian or military tribunal shall admit as evidence statements extracted from the defendant by torture or coercion [my emphasis].”
Presidential signing statements may be challenged in court.
Then, there is this:
“SEC. 7. KIDNAPPING, DETENTIONS, AND TORTURE ABROAD. No officer or agent of the United States shall kidnap, imprison, or torture any person abroad based solely on the President’s belief that the subject of the kidnapping, imprisonment, or torture is a criminal or enemy combatant; provided that kidnapping shall be permitted if undertaken with the intent of bringing the kidnapped person for prosecution or interrogation to gather intelligence before a tribunal that meets international standards of fairness and due process. A knowing violation of this section shall be punished as a felony punishable by a fine or imprisonment of up to two years.” (Emphases added.)
No one is safe.
* * *
There was an interesting new development for “enemy combatants” at the beginning of February, with the DC Court of Appeals issuing its en banc decision in the Bismullah case.
The full court maintained the wider scope of its evidentiary review (under the Detainee Treatment Act) of combat status determinations.
The Supreme Court had previously indicated that the Court of Appeal’s final decision would inform its own decision in the important pending Guantanamo detainee case, Boumediene-Al Odah.
The Circuit Court divided mostly on party lines, although Chief Judge Douglas Ginsburg (pic) sided with the Democrat appointees in declining to overrule the decision of the three-judge panel of which he was a part.
Meanwhile, the military commissions of Omar Khadr and Salim Hamdan resumed this week.
When the press arrived at Guantanamo, the Pentagon was showing off its wonderful new portable courts which, the Miami Herald gushed, “can be dismantled and shipped back stateside once trials are done”.
Yes, or shipped anywhere else in the world where summary show trials are planned.
Things got off to a shaky start when military publicists mistakenly handed the press corps secret evidence that might exculpate Khadr.
Unhelpfully for the Pentagon, the transcript of a US soldier’s testimony referred to another plausible grenade-lobber, and to an already wounded Khadr being shot twice again – in the back.
The motions and briefs are posted on the Pentagon website.
The argument on another motion, on Khadr’s status as a child soldier at the time of the “offences”, took a curious turn.
As I reported in my last post, the DC Court of Appeals has just ruled that Guantanamo detainees are not “persons” within the meaning of US law.
It seems the Department of Justice prosecutor takes a different view.
Responding to the argument that Congress could not have intended children to be subject to trial by military commission, the prosecutor claimed that it was enough that Khadr was a “person”, and he added, that means “anyone born alive”.

President Bush Declares Water-boarding Legal

According to the Chicago Tribune, the White House claims that DOJ officials were consulted about the legality of water-boarding and found that it was legal. They reserve the right for the President to authorize it again.

How did the United States of America ever get to this point? We were the leaders of human rights and freedom. How can we lose our soul so easily?

Water-boarding goes back to the days of the Spanish Inquisition and is clearly torture. There is no humane way to torture.

Human Rights watch claims that the recent testimony that the U.S. has used water-boarding is "an explicit admission of criminal activity."

The White House's claim that it is legal is an outrage.

Click on the title to read the article.

BEING AMERICAN MEANS NEVER HAVING TO SAY "I'M SORRY."

Unfortuantely Al-Ghizzawi's saga is not the only travesty at guantanamo and so I point you to todays Story about the man who died of cancer at the base on or about December 30, 2007: Abdul Razzaq Hekmati.
Hekmati was an Afghani hero who fought against the russians and the taliban and even helped some current afghani government officials escape from a taliban prison... in return some taliban members duped the americans into thinking Hekmati was either taliban or al-queda... and off he went to guantanamo... Despite lots of real evidence that he was on the same side as us... he remained at guantanamo until his death and even in death the military continues to lie about who he was... calling him a "jihadist"
You can read the entire story on Andy Worthington's webpage by clicking on the title above... but I leave you with this.. Hekmati died of colon cancer... one of the slowest moving cancers... according to the military he complained of pains in September and died a few short months later... given Al-GHizzawi's years long request for medical care we know that the military ignored Hekmati's condition until it was too late to save him...

EMERGENCY MOTION

As per yesterdays post I filed an emergency motion with Judge Bates of the District Court yesterday morning. It was cleared for public filing late yesterday and if you click on the title you can see the actual motion without exhibits... The general consensus is that Justice Roberts denied my motion in the Supreme Court because he felt I had relief available in the lower courts...I am testing that hypothesis.

WILL THE CIRCLE BE UNBROKEN?

Well today I go full circle in trying to get medical treatment and records for Al-Ghizzawi...I will be filing an emergency motion in the District Court before J. Bates, the judge that denied this motion 18 months ago because Al-Ghizzawi could not show "irreparable injury".... I would say the injury is pretty irreparable at this point but we will have to wait to hear what J. Bates thinks...
I will post the motion when it is cleared for public consumption.

REACTION TO MILITARY'S DENIAL THAT AL-GHIZZAWI HAS AIDS

According to news reports late yesterday (click on title) the military has "reviewed" medical records and announced that no one has AIDS at the base and no one has ever had AIDS at the base. This is of course the same military that claimed that the 800 men it was holding were the "worst of the worst"... now there are only 275 still being held... many of those men long cleared for release and the world (at least that part of the world that is awake) knows that the vast majority of the men are innocent civilians. So to say that the military's credibility isn't the greatest would be a bit of an understatement?
But this statement by the military leads me to ask two important questions....
First why didn't the military's mouth piece (the DOJ attorney assigned to the case) tell me that Al-Ghizzawi was AIDS free? When I posed the question to Mr. Warden (his real name!) he took a day and a half to respond and then his response was a refusal to deny... claiming "We are not privy to the particulars of what your client may have been told by his doctor, if anything,....." (he then went on to tout the great medical practices of this hell hole where my client lies dying...) (I actually did a follow up email telling him to make himself privy... but like most attempts to have a reasonable exchange of information with the DOJ regarding guantanamo, my request was ignored...)
Second, If Al-Ghizzawi does not have AIDS why the hell did a doctor at the base tell this very very ill man that he does have AIDS? Is this a new form of psychological torture at the base? Are they telling him that he has AIDS and that they won't give him life saving medical treatment unless or until he agrees to some false confession?
Until I have Al-Ghizzawi's complete medical records in the hands of a competent doctor I will not believe a word I hear from this deceptive exectutive branch and its military.

WHO CAN YOU CONTACT ABOUT THIS OUTRAGE???

I guess we start with Condoleezza Rice and work our way down:

U.S. Department of State 2201 C Street NW Washington, DC 20520
+202-647-4000 (main switchboard)

THEN WORK YOUR WAY DOWN TO :

John. B. Bellinger III
Legal Advisor
Department of State
2201 C Street NW
Rm. 6423
Washington D.C. 20520
VIA FACSIMILE +202-647-7096

DON' FORGET
Rear Adm. Mark H. Buzby, Commander Joint Task Force Guantánamo
Department of Defense , Joint Task Force Guantánamo, Guantánamo Bay, Cuba, APO AE 09360
Fax: +1 305 437 1241
Salutation: Dear Rear Admiral


THEN THERE IS ALSO:
J. Alan Liotta, Principal Director, Office of Detainee Affairs
Office of the Assistant Secretary of Defense, 2900 Defense Pentagon, Washington DC 20301-2900, USA
Email via: http://www.defenselink.mil/faq/comment.html
Salutation: Dear Director

PLEASE SEND COPIES TO:
Member of US Congress
Rep. Jan Schakowsky, 1027 Longworth House Office Building, Washington, DC 20515, USA
Fax: + 1 202 226 6890

REPRESENTATIVE SCHAKOWSKY (MY REPRESENTATIVE) HAS BEEN WONDERFUL AND IT IS GOOD TO LET HER KNOW THAT WE APPRECIATE HER HELP.....

TALKING DOG ON AL-GHIZZAWI

(click on the title to go to the original...)
Yes, the talking dog is outraged... but I thank him from the bottom of my heart for all of his hard work on behalf of Al-Ghizzawi... may it all come to something positive...sooner rather than later...

January 31, 2008, Calling Dr. Kafka Orwell
Candace again vouchsafes that her client, Abdul al-Ghizzawi, of Libyan nationality, Kabul, Afghanistan domicile and Camp 6, Guantanamo Bay, Cuba apparently permanent residence, has, in addition to contracting tuberculosis, now contracted AIDS there. Chief Justice Roberts, in a surprise to no one, denied Candace's motion seeking immediate medical treatment for her client, who contracted both TB and AIDS while in American custody. She will now have to seek that relief in other fora.
As Candace sometimes lets me review drafts of her court submissions (including her historic original habeas corpus petition now pending in the United States Supreme Court), I continue to take more than a rooting interest in this situation. The real question is why more Americans don't seem to be the least bit concerned with this (or even presidential candidates, other than the ravings of some who tell us that the cruelties of Guantanamo should be expanded).
There will come a point in our future when we look back at this era and realize that far from our being any kind of "greatest generation", this will be far, far less than our finest hour. We will wonder why a nation that once legitimately stood as a shining beacon of human rights has turned the light off and then smashed the bulb and set the lighthouse on fire. At a time when we could have reached deep inside ourselves for greatness, we chose panic and cowardice. Throwing away due process. And of course... the acceptance, if not embrace, of torture.
We will look back at this part of our history and realize... this could have been a moment of greatness-- a generational struggle against the forces of nihilism and chaos to create something better. Instead, while we watched, our so-called leaders (both parties, btw) have led us into anything but our finest hour.
War is peace. Ignorance is strength. Freedom is slavery. Your talking dog is outraged.