Tuesday, March 4, 2008


(Click on the title to go to the original)

Roger Fitch Esq • March 4, 2008

Our Man in Washington

If Gitmo closes what becomes of the inmates? Refoulement is the answer, i.e. even worse US prisons in Afghanistan … Lawyers who advised the administration on torture now under (soft) investigation … Bush lawyers at DoJ advising Iraqis on “justice and the rule of law”

It’s been a bruising fortnight for the dwindling tribe of military commission supporters.

First, Col. Morris Davis, the former Chief Prosecutor at Guantánamo, wrote “Unforgivable Behavior, Inadmissible Evidence”, an op-ed about torture, in The New York Times.

Soon after, Davis announced he would be a witness for the defence at Salim Hamdan’s military commission.

Next, Col Davis gave an interview with Ross Tuttle of the Nation in which he tipped on William “Jim” Haynes, the notorious Pentagon general counsel who has been the stationmaster for military commission railroading.

Harper’s Scott Horton has more on these events.

Within days, Haynes – after seven years on the Bush barricades – abruptly quit his job for private life, perhaps to enter corporate law.

If so, his options would seem pretty limited. Haynes (pic) already has been charged once with war crimes in Germany, and he could still lose his law licence – two penalties beyond the reach of a presidential pardon.

The resulting confusion at the Guantánamo commission circus was summarised by Andy Worthington.

Adding to the noise, Mother Jones just published a Torture Playlist comprising the appalling music used at Guantánamo and elsewhere to “prolong capture shock and drown out screams”.

* * *

All this has led to renewed talk of closing Guantánamo, bolstered by a manifesto from many of the world’s leading legal professional bodies, but not the American Bar Association, which now seems minded to collaborate with the commissions.

Yet if Gitmo closed, what would become of the inmates? One answer, of course, is repatriation, or, as also happens, refoulement – the internationally forbidden practice of forcibly returning refugees or prisoners to countries where they are in danger of mistreatment or death.

Literally, refoulement is “driving back”. Recently, however, we have learned of a practice that could be called “circular cycling”.

An Afghan, seized in Afghanistan, is taken to Guantánamo for no particular reason and then, also for no particular reason, returned to Afghanistan, only to disappear into the US-Afghan internment camp outside Kabul, the dreaded Pol-i-Charkhi, for further unlimited detention.

Pol-i-Charkhi is a former Russian prison. Eric Lewis (pic) is a lawyer for one of the Guantanameros who was sent to this supposedly “Afghan” prison, and he’s written in Slate about P-i-C and its new “national defence” wing built by the US government and staffed by US jailers and interrogators.

Joanne Mariner has also written about the P-i-C wing, called the Afghan National Detention Facility (ANDF).

The notorious US prison at Bagram Air Base in Afghanistan could be an additional destination for “released” Gitmo inmates. It’s been a dumping ground for prisoners since 2004, when the US stopped sending detainees to Guantánamo.

It was Bagram where, in 2002, US soldiers beat to death two Afghan prisoners, including the innocent taxi driver Dilawar whose story is told in this year’s Oscar-winning documentary, Taxi to the Dark Side.

The International Justice Network, an offshoot of the Center for Constitutional Rights, is fighting for the release of all civilians in Bagram, some of whom have filed habeas actions in Washington, as the Legal Times reports.

After years of buzz about Bagram and its abuses, The New York Times has lately decided to report on the problem.

* * *

You may recall that Attorney General Michael Mukasey told Congress he could not investigate government officials who had “harshly interrogated” prisoners in the “war on terror” as his department’s Office of Legal Counsel had issued opinions purporting to bless waterboarding and other practices as legal.

Harper’s blogger Scott Horton was quick to point out that, in that case, the real objects of investigation should be the lawyers who gave the torture advice.

Now it turns out that the Office of Professional Responsibility at DoJ is in fact investigating the OLC opinions.

According to Slate’s Emily Bazelon (pic), OPR is the wrong watchdog for an investigation: it has neither bark nor bite.

* * *

More motions have been filed in the Omar Khadr military commission, including two that deal with the failure of the US to comply with the fair trial requirements of the Geneva Conventions’ Common Article Three – a specific requirement of the Supreme Court in the Hamdan case – and with the Bush administration’s bizarre claim that killing US soldiers in a war is somehow murder in violation of the law of war.

The Miami Herald’s Carol Rosenberg is one of the few journalists to examine the Pentagon’s expansive definition of war and war crimes.

As for the “murder” charge, a new law review article by David Glazier of Loyola University (LA) points out:

“The flaw in the US approach is that it wants to have it both ways, treating its adversaries as being both subject to being killed wherever found like traditional combatants, yet also denied legal authority to fight, as are non-combatants. If upheld, Khadr would have the legal status of a deer during hunting season – fair game for coalition forces to kill at will yet possessing no right to fight back.”

Moreover, Glazier says:

“By electing to conduct military commission trials failing to meet international due process standards, the government places participants, including judges, prosecutors, trial panel members, and those involved with post-trial review at risk of subsequent prosecution for war crimes themselves. Although the actual likelihood of such prosecution may be remote, it provides another basis on which the tribunals may be criticized and any remaining moral high ground surrendered.”

* * *

None of this, of course, cramps the style of the Bush Gang. Without a trace of irony, the Bush lawyers at DoJ are solemnly advising the Iraqis on “justice” and the “rule of law”.

Meanwhile, the Justice Department is planning a spring seminar on Investigating and Prosecuting Human Rights Violators in the United States.

Bookings should be heavy: it could prove a useful tool for aspiring prosecutors in a new administration.