FROM ROGER FITCH AND OUR FRIENDS DOWN UNDER. JANUARY 2022 EDITION

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Courthouse - Guantánamo Bay

It has been twenty years since George Bush set up his extraordinary military prison at Guantánamo Bay, Cuba. It's one of America's greatest injustices, and clearly a political albatross. 

There has been little amelioration of this extralegal blunder, including under President Biden. Although two more men have been released, bad behaviour by the CIA, FBI, Pentagon and prosecution still keeps surfacing.

The Biden administration is building a second military courtroom for its prosecutions, although it appears that, in all the years of these, only one case (the current Abdul Hadi case) has involved a validly-charged war crime recognised under international law. 

On his first day in office, Biden acquiesced in the charges brought by an outgoing Trump Pentagon official, against Riduan Isamuddin (Hambali), the Bali Bomber, for "war crimes" consisting of terror attacks in Southeast Asia, far removed from any armed conflict. The new courtroom is designed for three defendants - it seems intended for Hambali and his co-defendants.

The "9/11" case, (once planned for civil trial in Manhattan, now to be tried by military commission) is in the other Gitmo courtroom. Like Hambali's, the case is emblematic of the grave jurisdictional defects in the trials - it's general knowledge that the Afghan war began in October 2001.

In both cases, military prosecutions have been contrived for civilian crimes, by fraudulently folding terrorism offences into the armed conflict in Afghanistan. All the cases, other than Abdul Hadi's alleged attacks on civilians, suffer from the same jurisdictional defects, having occurred outside war, or theatres of war, or (as in David Hicks' case) involving unrecognised or retrospective non-war crimes. 

Abd al-Rahim al-Nashiri's charges actually include piracy (the MV Limburg bombing); it's Nashiri's case where the Biden administration faces scrutiny on the use of torture evidence.

The prosecutions suffer from jurisdictional defects compounded by torture, but a few convictions have been achieved by guilty pleas that won't be appealed, e.g. the plea just made by Majid Khan.

In a Stalinesque court appearance, Khan confessed to numerous crimes unknown to the law of war, but at least his attorneys negotiated the inclusion in his plea of his testimony about torture. 

The military jurors believed Khan, strongly condemning his torture, but at best, his evidence will result in a shorter military sentence.

Torture is cause for dismissal in federal court (Ahmed Ghailani excepted) - it's "government misconduct that shocks the conscience".

Due process matters. 

READ THE REST OF FITCH HERE.