Torture 101 with live students...

 Seems my country's CIA wanted to teach its students how to torture people in real time. We now know about at least one of those men- still held at Guantanamo-

A man detained by the CIA in Afghanistan was used by US interrogators teaching torture techniques, leaving him with brain damage, a declassified document has revealed.

The 2008 report, by the agency’s inspector general, stated that Ammar Al Baluchi, one of five men charged over 9/11, was repeatedly slammed into a plywood wall so trainees could receive “certification”.

All “the interrogation students lined up to ’wall’ Ammar” so the lead interrogator, identified only as “NX2”, could assess their techniques, the report said.

Read the rest here. 

From Roger Fitch and our friends down under.3.23.22

 Bad news from SCOTUS ... Vaccines, climate and discrimination ... State secrets privilege applied in torture cases ... Partisan courts ... Forum shopping for flexible federal judges ... Political control of the state courts ... From Roger Fitch in Washington 

Bad decisions are flowing from the newly-stacked supreme court: notably, a decision overturning Occupational Health and Safety Administration regulations requiring employers to vaccinate employees. These unexceptional workplace regulations were blocked on grounds not found in the OSHA statute. American Prospect has more.

A case implicating climate change is now on the court's radar, threatening not only the EPA's authority to regulate, but the ability of Congress to delegate regulatory power to executive agencies. There's now a speculative Phantom Docket that reflexively questions administrative expertise. 

While undermining benign health regulations, the court may be contemplating new legal loopholes, e.g, a "homophobia exemption" from anti-discrimination law.

Sadly, the court backed the government in appeals supporting the "state secrets" privilege: CIA torture (Zubaydah's) and FBI surveillance (Muslim).  

An import from English law, the privilege was unknown in US law until 1953, when it was fabricated by the government and accepted by the supreme court. In US v Reynolds, the court found state secrets were an implied extension of executive privilege, another modern invention.

The Reynolds privilege afterwards proved to be falsely-claimed to conceal military negligence, yet the precedent remains, an absolute, unqualified rule of evidence. 

In Zubaydah, the government pleaded "state secrets" to block testimony by the psychologists James Mitchell and Bruce Jessen, in the Poles' investigation of the CIA facility in their country. The men were employed by the CIA to devise the torture program used against Zubaydah.

The CIA's Polish torture camp is no secret, and was described in the Senate Torture Report.  

Justices Sotomayor and Gorsuch vigorously dissented, with Gorsuch rightly characterising the state secret claim as seeking a judicial "rubber stamp" to avoid "further embarrassment for past misdeeds" of the government. 

Poland has already been forced to pay Zubaydah damages for collusion in his CIA detention and torture,  (so has Lithuania) and it's now following up with an investigation ordered by the European Court of Human Rights. The US signed the Hague Evidence Convention requiring cooperation.

President Obama also zealously pursued state secrets claims, even - to the surprise of many, including federal judges and the Times - those of George Bush. Curiously, the one legal proceeding where Obama did not plead state secrets was the one the ACLU brought against the very same psychologists whose evidence is sought by Zubaydah for the Polish inquiry.  

Absent a state secrets defence, the ACLU case proceeded to trial and was settled by Mitchell and Jessen, who had CIA indemnities. It's the only litigation where the CIA was forced to pay damages (indirectly) to victims.

READ THE REST HERE.

feelin' lucky?

 

LOTS OF PARALLELS BETWEEN IRELAND AND UKRAINE.

BUT WITH DUE RESPECT TO JOHN-  I WOULD NEVER WISH TO BE ENGLISH INSTEAD....

musical interlude

 

For some reason this one seems appropriate, again.

The most popular song in Ukraine right now...

 Ukrainians have made a song about the Turkish-made killer drones that are decimating Russian convoys.'

Repatriation of Guantanamo Prisoner- the tortured al-Qahtani

As my friend the talking dog noted: Trump released 1 prisoner over his 4 years in office "so now Biden has doubled the number of releases Trump did. To two." 

sigh.

The Department of Defense announced today the repatriation of Mohammad Mani Ahmad al-Qahtani from the detention facility at Guantanamo Bay to the Kingdom of Saudi Arabia.

On June 9, 2021, the Periodic Review Board process determined that law of war detention of Mohammad Mani Ahmad al-Qahtani was no longer necessary to protect against a continuing significant threat to the national security of the United States. Therefore, the PRB recommended that al-Qahtani be repatriated to his native country of Saudi Arabia, subject to security and humane treatment assurances.  

On Feb. 4, 2022, Secretary of Defense Austin notified Congress of his intent to repatriate al-Qahtani to Saudi Arabia. In consultation with our Saudi partners, we completed the requirements for responsible transfers. 

Democracy is so fragile

 

Masters of war…..

 

From Roger Fitch and our friends down under at Justinian...2-20-2022

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Jackson: Supreme Court frontrunner

The new hard-right supreme court super-majority is settling in for years of political and judicial mischief. The Atlantic looked at supreme court history and the perils of a new court with an 1890s perspective. 

A court retirement by one of the remnant liberals has been announced; President Biden is about to fill the vacancy on the court created by the planned retirement of Justice Stephen Breyer, a centrist member of the Democrat-appointed minority. 

Biden has already announced the appointee will be one of several well-known African-American women serving on lower courts. The frontrunner is believed to be the highly-qualified Ketanji Brown Jackson, currently serving on the DC circuit.

Headed for the court are the decisions of state and federal judges striking down, as racial gerrymanders, the latest congressional redistricting by states. The supreme court responded by reinstating an egregious Alabama racial gerrymander.

In a demonstrably partisan election-year interference, a 5-4 majority of the court used its "shadow docket" to lift a stay unanimously granted by a special three-judge federal court. Now, challenged districts whose legality is yet to be decided may be implemented in this year's elections. 

Chief Justice John Roberts joined the liberals; perhaps he now regrets personally gutting the Voting Rights Act 1965  in the infamous 2013 decision, Shelby County v Holder, another Alabama case.

It's only one lost seat for the Democrats, but five Republican-appointed justices couldn't resist the opportunity to put their thumbs on the scale in an election year . 

Court observer Linda Greenhouse called it the moment the court "crossed the Rubicon" of partisan activism; the court is now on track to completely hollow out the VRA before the 2024 election. 

READ THE REST HERE.

MUSICAL INTERLUDE

 Perilous times. We here in the U. S of A could be doing so much more if we turned our hearts and minds to peace.... instead of our usual playbook.

another torture victim is cleared for release

 Mohammed al-Qahtani was cleared for release last week. The torture of Qahtani was one of the worst and was approved by the war criminal and now deceased former secretary of defense, Rumsfeld. 

From the website Close Guantanamo:
 

The details of his torture shocked the world when a day-by-day interrogation log was leaked to Time magazine in 2006. As the Times described it, the log revealed how "military interrogators placed Mr. Qahtani in solitary confinement, stripped him naked, forcibly shaved him, and subjected him to prolonged sleep deprivation, dehydration, exposure to cold, and various psychological and sexual humiliations like making him bark like a dog, dance with a man and wear women’s underwear on his head." As the Times added, "They extracted a confession, which he later recanted," and which included allegations that he had made against 30 other prisoners, falsely claiming that they were bodyguards of Osama bin Laden.

Qahtani was reportedly mentally handicapped even before the torture and will most likely need life long medical care. Word is that the Biden administration has worked out a deal for the Saudi government to take him and provide that care.  Let's hope this is true.

Read more here.

Positive change in the Government's position in Gitmo cases

 

In the military commission case of Al-Nashiri the government had successfully argued that evidence derived from torture did not apply to pretrial proceedings. 

 Now the government has reversed that position:

The government recognizes that torture is abhorrent and unlawful, and unequivocally adheres to humane treatment standards for all detainees. See Executive Order 13491. In the absence of direct authority interpreting Section 948r(a), the government took the position below that Section 948r(a)’s prohibition on admission of statements obtained through torture or cruel, inhuman, or degrading treatment applies only to the trial and sentencing phases of a military commission and not to pretrial proceedings. Since that filing, the government has reconsidered its interpretation of Section 948r(a) and, as a result of that review, has concluded that Section 948r(a) applies to all stages of a military commission case, including pretrial proceedings. In accordance with that conclusion, the government will not seek admission, at any stage of the proceedings, of any of petitioner’s statements while he was in CIA custody.

Maybe my government is starting to behave somewhat humanely!

musical interlude

 sunday, bloody sunday. 50 years ago.

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.

THE TWO QUESTIONS

 When I tell people that I represent a man who is still held at Guantanamo there are two questions that I get too often. 

Isn't Guantanamo closed, I thought Obama closed it? (sigh)

and, What could you still be litigating at this point?

The first question is easy to answer. NO- it is not closed- Obama lost interest and there were still 50 men left when Obama left office- As I recall, one of those who remains was literally ripped off the plane in the last days of the Obama administration because Obama blew a timing issue.

The second question has always been hard to explain to non-lawyers. 

But now Shane Kadidal (from Center for Constitutional Rights) who has worked on Guantanamo issues since the beginning answers the second question in a really understandable way. Thank you Shane.

Read Shane's piece here.