Meanwhile... back on the home front.

The administration is apparently looking for prisons in this country to house the remaining detainees.

And the states that are being looked at are freaking out. Read more here, here and here.

And this from the Onion......

Guantanamo's new senior facility....

By any other name... it is still torture

CIA whistleblower John Kiriakou speaks out again on the torture conducted by the CIA of its prisoners:

It’s plain and simple: The CIA tortured its prisoners. They can call it anything they want. It’s still torture. 
And that's a crime against humanity.

Read the rest here.

The President isn't even trying to move the cleared for release men out of Guantanamo.....

According to Secretary of defense Carter, "there has been no pressure from the White House to transfer detainees at a faster rate, Carter said. "I see it exactly as the president does," he said.

Read the rest here.

Meanwhile in science 'military style'.... the Navy claims asbestos is safe.

I reported last month about the cancer cluster at the base by attorneys and staff working on the military commission cases. The Navy now admits that there are carcinogens at the commission site but no one should worry.

 "A public health team found evidence of carcinogens at the war crimes court compound at the U.S. Navy base at Guantánamo Bay, Cuba, but has concluded so far that the buildings are safe for occupancy, the Navy said Friday."

I am guessing those stricken with cancer and other serious illnesses do not agree.

Read the rest here and here.

But maybe this is an underlying reason for the judge once again continuing the hearings for those being tried in the commission.... 

and excelerated efforts to find new lodgings for the men. Read more here, here and here.

Obama claims he wants to close the place....

He just doesn't want to release the men that his administration has already cleared for release... and he is afraid to say it in a public filing.

[JURIST] The US Department of Justice (DOJ) [official website] on Friday submitted a sealed document [The Guardian report] in opposition to the habeas corpus petition of Tariq Ba Odah, despite a 2009 government security review that cleared Ba Odah for transfer. In a public disclosure, the US government reported it "remains committed to promptly securing an appropriate location to which petitioner Ba Odah can be transferred." Ba Odah is represented by Omar Farah of the Center for Constitutional Rights[official website; case backgrounder]. After the government's filing, Farah announced [WSJ report] that he was disappointed by the inconsistencies between the original plan to close Guantanamo and the government's execution of that plan. In June, Ba Odah submitted doctor's statements into court records which argue Odah's medical condition has reached the point of irreparable harm. Amnesty International (AI) [official website] filed a statement [press release] on the Ba Odah Habeas case, reporting on the prisoner's 'concerning' medical condition and his ongoing hunger strike.

READ THE REST HERE...and Here.

From Roger Fitch and our friends down under at Justinian.

The US has long seized and interned combatants whom they categorise as "unprivileged", although the Article 5 (prisoner status) hearings they are entitled to under the Geneva Conventions and US law have never been held. 

A few of those who dared oppose US soldiers and military operations overseas are now being brought to the US for civil trials. 

Irek Hamidullin is a Russian convert to Islam picked up in the Afghan war and brought to the US for trial in a Virginia federal court on sundry war-related charges – labelled "terrorism" - on the basis that he had been "fighting with the Taliban" – assuming, with George Bush, that Taliban fighters can't be privileged belligerents.  

The judge expressed scepticism but allowed the case to proceed. Coverage of the trial has been spotty. 

It may indeed be lawful for the US to prosecute military opponents in civil courts using US domestic laws, by classifying them as unprivileged and charging them with terrorism.

As previously noted (see post of Sept 2010) the authoritative Conduct of Hostilities Under the Law of Armed Conflict (2004) provides that: 

"With unlawful combatants, [the law of armed conflict] refrains from stigmatizing the acts as criminal.  It merely takes off a mantle of immunity from the defendant, who is thereby accessible to penal charges for any offense committed against the domestic legal system."

You'd think that would be the domestic legal system of the country where the war is occurring, e.g. Afghanistan prosecuting personal crimes such as murder and looting committed under cover of war, but according to the ICRC: 

"If civilians directly engage in hostilities, they are considered 'unlawful' or 'unprivileged' combatants or belligerents ... [and] ... may be prosecuted under the domestic law of the detaining state for such action." 

Knowledgeable academics like Just Security's Steve Vladeck seem comfortable with the idea of US civil prosecutions for foreign battlefield actions, evidently on the assumption that the Taliban don't qualify as lawful, privileged belligerents and are thus "terrorists". 

If Hamidullin is meant to be indicative of foreign fighters who have opposed Americans, he seems an odd choice, as he didn't actually harm anyone. As his lawyer pointed out, the case was not about suicide bombings or attacking civilians, and was "the very first case of its kind". 

In fact, the US has already obtained a domestic conviction against a foreign combatant for opposing US troops on a battlefield overseas. More here on the conviction of Saddiq Al-Abbadi, achieved through a guilty plea.

The NY Times comments on the strange new trend of prosecuting foreigners in American courts for crimes - if such they be - that occurred outside the US, including many that have little or no connection to the US.

In a British case similar to Hamidullin's, and based on unprivileged combat, a UK resident, Anis Sardar, was convicted of murder for making a roadside bomb that killed a US soldier in Iraq.   

What if Sardar had been a lawful combatant? In today's warfare, is the use of a hidden roadside bomb a war crime? Does it involve treachery or an unlawful weapon?

It's being treated as a war crime in the latest Guantánamo prosecution, that of Abd al Hadi. If so, it would be - along with his alleged attacks on civilians - among the first valid war offences charged at Gitmo. 

Legal academics are meanwhile debating what to do with the Pentagon's unprivileged belligerents - those CIA operatives, who drone-kill military and non-military targets alike, assisted by mercenaries, sorry, contractors, who could also become unprivileged belligerents, but, like the CIA, receive little oversight. 

What could possibly go wrong?

READ THE REST HERE

Funny thing.... I thought the President was the Commander in Chief

But I guess not.

Read more here.

The ongoing battle between the so-called Justice department and the Department of Defense

A lawyer for the detainee, a Yemeni named Tariq Ba Odah, has asked a federal judge to order his release because of his “severe physical and psychological deterioration.” On Friday, for the third time, the Justice Department asked a judge to extend its deadline to respond, saying the administration needed another week “to further consider internally its response to petitioner’s motion.”

Behind the scenes, according to the officials, the petition has set off an interagency debate. State Department officials say that the government should not oppose his release, citing his medical condition and the incongruity of sending diplomats to ask other countries to take in such detainees even as the Justice Department fights in court to prolong their detention.

READ THE WHOLE STORY HERE.