so this is xmas....

Torture and the ICC

I lost track of these proceedings and h/o to Robert for the reminder and link.

The chief prosecutor at the international criminal court at The Hague is working hard to get the court to look into the war crimes in Afghanistan. What I learned when I worked at the court is that it is ultimately a bureaucratic/political institution but kudos to the chief prosecutor for pushing this.
Hope dies last and all.

musical interlude

We have a very dangerous president here in the US of A. Today some of our congressional representatives are doing the right thing. Unfortunately too many are turning their heads and looking the other way -- because they are more interested in their personal political fates. So, while we wait for the final vote let me leave you with this:

More on last weeks oral argument at DC Circuit Court

Attorneys Urge Court to Change Ground Rules for Guantánamo Cases

Contact: press@ccrjustuce.org

Without Due Process, Detainees Face Detention for Life, Lawyers Warn

December 11, 2019, Washington, D.C. – Today, attorneys from the Center for Constitutional Rights urged a federal appeals court to overturn a lower court ruling against Abdul Razak Ali (aka Saeed Bakhouch), who has been detained at Guantánamo without charge since June 2002, and to rule more broadly that the fundamental protections of the Due Process Clause apply to detainees and limit otherwise limitless detentions there. Mr. Ali had filed a petition for release together with ten other Guantánamo detainees, arguing that their ongoing detention is arbitrary and unlawful, particularly in light of Donald Trump’s stated policy that no one should be released from the prison regardless of the facts of their case. A lower court held that “the [Constitution’s] due process clause does not apply in Guantánamo,” which attorneys say defies Supreme Court precedent. 

“During the Bush administration, the Supreme Court twice struck down attempts to gut Constitutional protections against arbitrary detention at Guantánamo, but since then the lower courts have made it effectively impossible to win a case in court no matter how weak the government’s evidence is,” said Shayana Kadidal, Senior Managing Attorney of the Guantanamo project at the Center for Constitutional Rights, who argued today. “Today’s hearing asks the court to finally provide detainees the fair process the Supreme Court envisioned ten years ago.” 

In its landmark 2008 decision in Boumediene v. Bush, the Supreme Court held that Guantánamo “is, in every practical sense, not abroad,” and because of that the right to challenge one’s detention in federal court could not be denied. Today, Kadidal argued that the same principle requires that “due process”—the fundamental substantive and procedural protections guaranteed by the constitution—should also apply at Guantánamo. 

Attorneys further argued that Mr. Ali’s continued detention does, indeed, violate the Due Process Clause. He remains detained—for what will soon be eighteen years—based primarily on an eighteen day stay in a guesthouse in Pakistan associated with a suspected jihadi leader. Today, Kadidal told the court that after this length of detention, the government must demonstrate that there is a continued purpose for detaining Ali, using more reliable evidence than it has produced to date, and meeting a higher burden of proof. 

“My client lost his first appeal six years ago even though, in the words of one of the judges, he ‘never planned, authorized, committed or aided any terrorist attacks,’ because the burden of proof on the government is lower than what’s required in traffic court,” said H. Candace Gorman, a Chicago-based attorney who has represented Ali for 13 years. “If the legal status quo doesn’t change, Ali will die in prison without ever having been charged with a crime.” 

Forty men remain detained at Guantánamo. Twenty-eight of them have never been charged. Twenty-seven were held by the CIA at some point during their detention. Five have been unanimously cleared for release by all relevant agencies (including the State Department, FBI, and the military). 

For more information, visit the Center for Constitutional Rights’ case page.

Oral Argument Tomorrow

For those of you in the DC area I invite you to come and watch the oral argument in the DC Circuit Court for my client Razak Ali. The issue is simple but also so very important -- does the due process clause apply at Guantanamo?
The argument is set for 930 tomorrow morning and my co-counsel Shane Kadidal from the Center for Constitutional Law will argue for Mr. Ali.

A disturbing first hand look at the torture program by Abu Z

               For the rest of this article and more drawings by Abu Z (click here)                         (sorry I am having problems copying this so just go to the article...)

                 What the C.I.A.’s Torture Program Looked Like to the Tortured

Drawings done in captivity by the first prisoner known to undergo “enhanced interrogation” portray his account of what happened to him in vivid and disturbing ways.

           An image drawn by Abu Zubaydah, a prisoner at Guantánamo Bay, shows how the            C.I.A. applied an approved torture technique called “cramped confinement.”Credit...Abu              Zubaydah, Courtesy Mark P. Denbeaux

By Carol Rosenberg

From our Friends down under at Justinian....

From Roger Fitch and our friends at Justinian:

Impunity is meanwhile everywhere. In an action viewed as damaging the US military, Trump handed out pardons to convicted and accused US war criminals, though it's hard to see what votes he will get out of it, especially among service members, some of whom dobbed in their lawless officers and NCOs.  

Defence opposed the pardons, particularly that of Chief Petty Officer Eddie Gallagher, one of the most vicious convicted SEALs. Trump, responding to a Fox News beat-up, sought to completely exonerate Gallagher, while the Navy tried to expel him from the SEALs. In an extraordinary action, the president personally ordered Gallagher's retention in the unit, and sacked the Navy Secretary. 

What's next? Will Trump pardon the Blackwater mercenaries, convicted and sentenced in the shocking Nisour Square massacre in Baghdad?

Trump's sanctioning of war crimes begs the question, will he attempt to reintroduce torture, a practice he has condoned in the past. It's a timely subject, as a new film about the Senate Torture Report has put the notorious CIA torture program - implemented by George Bush - back in the news. 

Barack Obama effectively pardoned participants in the Bush administration program, with dilatory and cosmetic inquiries conducted while the statutes of limitations - except for murder - ran. We now know that, even had Obama's Justice Department prosecuted and jailed those involved, Mr Trump would have pardoned them, given them medals, and, as he actually has done in the appointment of CIA Director Gina Haspel, rewarded them.  

Trump has also successfully stonewalled the proposed ICC investigation into torture in Afghanistan and other Rome Statute countries where CIA torture occurred; the matter is now under appeal at the Hague. More here on the international efforts to hold accountable those countries implicated in CIA black site torture. 

Read the rest here....