Nuremberg Prosecutor Denounces Guantánamo

Henry King Jr., who was a U.S. prosecutor at Nuremberg (and is now a respectable 88 years old), is no fan of the Bush administration's detention policies.

"I think Robert Jackson, who's the architect of Nuremberg, would turn over in his grave if he knew what was going on at Guantanamo," Nuremberg prosecutor Henry King Jr. told Reuters in a telephone interview.

"It violates the Nuremberg principles, what they're doing, as well as the spirit of the Geneva Conventions of 1949....

"The concept of a fair trial is part of our tradition, our heritage," King said from Ohio, where he lives. "That's what made Nuremberg so immortal -- fairness, a presumption of innocence, adequate defense counsel, opportunities to see the documents that they're being tried with."

King, who interrogated Nuremberg defendant Albert Speer, was incredulous that the Guantanamo rules left open the possibility of using evidence obtained through coercion.

"To torture people and then you can bring evidence you obtained into court? Hearsay evidence is allowed? Some evidence is available to the prosecution and not to the defendants? This is a type of 'justice' that Jackson didn't dream of," King said.

He said the Guantanamo prisoners should be tried in the court-martial system or the U.S. federal courts, under fair rules that leave open the possibility of acquittal. Three Nuremberg defendants were acquitted, King noted.

Source: Reuters

Another "money quote" from today's Al-Marri decision:

Judge Motz writes:

To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them “enemy combatants,” would have disastrous consequences for the Constitution -- and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power -- were a court to recognize it -- that could lead all our laws “to go unexecuted, and the government itself to go to pieces.” We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic.

Victory for Al-Marri in the Fourth Circuit

Ali Saleh Kahlah al-Marri, a citizen of Qatar (and a legal resident of the U.S.) scored a major victory today. Al Marri has been held in indefinite military detention since 2003 but an appellate court has now granted al-Marri habeas relief and ordered that his military detention must end. Al-Marri must now be returned to civilian prosecutors (if not released).

Back when he was in the civilian court system, al-Marri was charged with various white collar crimes and making false statements to the FBI...not exactly Osama's no. 2 man.

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Here is a snippet of the opinion, with a link to the full opinion below:

DIANA GRIBBON MOTZ, Circuit Judge:

For over two centuries of growth and struggle, peace and war, the Constitution has secured our freedom through the guarantee that, in the United States, no one will be deprived of liberty without due process of law. Yet more than four years ago military authorities seized an alien lawfully residing here. He has been held by the military ever since -- without criminal charge or process. He has been so held despite the fact that he was initially taken from his home in Peoria, Illinois by civilian authorities, and indicted for purported domestic crimes. He has been so held although the Government has never alleged that he is a member of any nation’s military, has fought alongside any nation’s armed forces, or has borne arms against the United States anywhere in the world. And he has been so held, without acknowledgment of the protection afforded by the Constitution, solely because the Executive believes that his military detention is proper.

While criminal proceedings were underway against Ali Saleh Kahlah al-Marri, the President ordered the military to seize and detain him indefinitely as an enemy combatant. Since that order, issued in June of 2003, al-Marri has been imprisoned without charge in a military jail in South Carolina. Al-Marri petitions for a writ of habeas corpus to secure his release from military imprisonment. The Government defends this detention, asserting that al-Marri associated with al Qaeda and “prepar[ed] for acts of international terrorism.” It maintains that the President has both statutory and inherent constitutional authority to subject al-Marri to indefinite military detention and, in any event, that a new statute -- enacted years after al-Marri’s seizure -- strips federal courts of jurisdiction even to consider this habeas petition.

We hold that the new statute does not apply to al-Marri, and so we retain jurisdiction to consider his petition. Furthermore, we conclude that we must grant al-Marri habeas relief. Even assuming the truth of the Government’s allegations, the President lacks power to order the military to seize and indefinitely detain al-Marri...

Click here to read full opinion, (in PDF format).

Colin Powell on closing Guantanamo

The Iraq-tarnished Powell speaks out (a few years too late) on Guantánamo.

Psychologists Against Torture

Prominent psychologists from around the country have signed an open letter to the president of the American Psychological Association, expressing their concerns over the role psychologists are playing in U.S. interrogation of prisoners in the "war on terror."

We write you as psychologists concerned about the participation of our profession in abusive interrogations of national security detainees at Guantánamo, in Iraq and Afghanistan, and at the so-called CIA "black sites."Our profession is founded on the fundamental ethical principle, enshrined as Principle A in our Ethical Principles of Psychologists and Code of Conduct: "Psychologists strive to benefit those with whom they work and take care to do no harm." Irrefutable evidence now shows that psychologists participating in national security interrogations have systematically violated this principle. A recently declassified August 2006 report by the Department of Defense Office of the Inspector General (OIG) — Review of DoD-Directed Investigations of Detainee Abuse — describes in detail how psychologists from the military's Survival, Evasion Resistance, and Escape (SERE) program were instructed to apply their expertise in abusive interrogation techniques to interrogations being conducted by the DoD throughout all three theaters of the War on Terror (Guantánamo, Afghanistan, and Iraq). READ MORE

Politics and Eggs

From the AP:

Republican presidential hopeful Mitt Romney says the US military prison at Guantanamo Bay, Cuba, is a necessary tool in the war on terror. He was speaking this morning at a "Politics and Eggs" breakfast in Bedford(New Hampshire).

Romney visited the base last year. He says prisoners there probably are treated better than they should be, and he says the food is unbelievable.

No word on whether Romney ordered his eggs hardboiled, over-easy or forced down his throat through a nasogastric feeding tube.

What about the other 300?

Anant Raut has produced an excellent 4-slide PowerPoint on the other 300 Guantánamo prisoners the government says will never be charged with a crime or brought before the military commissions. We are paying a terrible moral price for detaining these men indefinately. But as Anant points out, we are also paying an obscene price in hard, cold cash for Bush's gulag.

We have reproduced the slides as images HERE.

Q & A on recent decisions in the military commissions:

In preparation for today's broadcast of The Story. Candace prepared a run-down of the possible implications of the recent orders from military judges, dismissing all charges against Salim Hamdan and Omar Khadr.
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Q: Are the military decisions a serious set-back for Bush or just a question of semantic definitions?

A: This is not just semantics…. but it is very confusing. The Republican-controlled congress passed the military commissions act (MCA) in October 2006. The MCA abolished the great writ of Habeas Corpus (a law that allowed prisoners to be brought before a court and told what they were accused of doing). That (Republican-controlled) congress claimed that the MCA was an adequate substitute for Habeas Corpus and that the MCA would provide a process for “the worst of the worst” that were being held at Guantánamo. This "alternative process" was a military commission hearing.

The MCA was also designed to give a rubber stamp to the horrendous treatment of the prisoners by clarifying that the men were not entitled to prisoner of war status. There are two types of enemy combatants: lawful enemy combatants (POWs) are entitled to all of the protections of the Geneva Conventions, in particular the protections of the Third Geneva Convention which lays out the treatment of prisoners of war. Unlawful enemy combatants are entitled only to the protections of Common Article III. Given the choice, you would prefer the better POW treatment. The MCA, by definition, only applies to unlawful enemy combatants. However, none of the men at Guantánamo have ever been found to be unlawful enemy combatants. The combatant status review tribunals (CSRTs) that make this determination have only designated GTMO prisoners as “enemy” combatants. (Incidentally, many Guantánamo inmates, including one of my clients, were actually found to be non-enemy combatants until the government rigged do-over tribunals.) An enemy combatant is considered the same as a lawful enemy combatant. Therefore this law that supposedly stripped Habeas Corpus from the prisoners at Guantánamo cannot apply to these men because none of them was ever found to be an “unlawful” enemy.

Additionally (and significantly), the language of the Hamdan military judge suggests that Mr. Hamdan, based on the facts before him, could never be an “unlawful enemy combatant”…. That seems to be a hint to the government not to embarrass itself any further....

Given the military decisions yesterday and the treatment the detainees have received at Guantánamo up to this point, the U.S. is in clear breach of the Geneva Conventions with respect to all of these detainees. That is not a good situation for our country to be in…. especially in a time of war…. If we are breaching the Geneva conventions (which, of course, we are) then what can we expect for our own troops?


Q: How might it affect your clients?

A. It might mean that my clients can finally get before a judge in a Habeas Corpus action. The government might be forced to explain why my clients are being held and my clients might have a chance to defend themselves. Only time will tell… we still have to figure out if our judiciary is brave and independent enough to tackle these issues…so far they haven’t been but now they have new ammunition, should they care to use it.


Q: What do the decisions really mean?

A: What this really means is that the government’s attempt to insulate itself from war crimes tribunals did not work. They passed the MCA in an attempt to justify its handling of these men at Guantánamo, they tried to take away the rights of the men to challenge their incarceration and they tried to say that they were not even entitled to the minimum protections of Common Article III. But the law that they passed to try to protect themselves against claims of war crimes does not, in fact, protect them because this law does not apply to these men. It means that these men should have, at the very least, been treated as prisoners of war… I also believe that it means that Habeas Corpus was not legally stripped for the men of Guantánamo because there was no adequate substitute put in the place of Habeas Corpus.

Q: Why should we care?

A: We used to be a nation of laws… we were proud of our judicial system and proud of the fact that we followed the letter of the law. We asked other countries to follow our example and we chided those countries that did not… often we sanctioned those countries that refused to follow what we claimed were “universal laws” and asked others to sanction those countries as well. But after 9/11 we as a nation decided that we are above the law and that in order to protect ourselves we could disregard the law. That led us to Guantánamo (and other atrocities) which in turn led us to the Military Commissions Act. The MCA was an attempt to codify into law many of the illegal actions committed against the men at Guantánamo and to keep them out of a court of law…. If we care about justice we should care about these two military decisions that recognized that the MCA does not apply to the men at Guantánamo …. We should care about the great writ of Habeas Corpus and demand that it be fully reinstated. If not, we have no claim on being a great nation of laws… we become just another banana republic.


Q: What role might the Supreme Court play in the future of Guantánamo litigation given its decision in April to not rule on the constitutionality of the MCA?

A: The Military Commissions Act was an illegal law from the day it was drafted. It retroactively took away rights that existed when these men filed their law suits in federal court. The lawsuits were filed as Habeas Corpus actions and the lawsuits asked the court to force the government to explain why the men are being held. Even Sen. Specter who voted for the MCA said the law was unconstitutional and that he expected the Supreme Court would find it so. (How senators can justify voting for a law that they know is clearly unconstitutional is a question that the voters of Pennsylvania and other states will have to deal with…) However when the issue of the constitutionality of the MCA came to the Supreme Court in April of this year, the court said it would not hear the case, at this time, because it needed more time to see if the MCA could work and if in fact the MCA was an adequate substitute for Habeas Corpus. It was a bitter disappointment to the men at Guantánamo and their attorneys… we were forced to follow a law that was clearly unconstitutional, for some unknown amount of time in order to show the Supreme Court that this law could not work.

Then yesterday, out of the blue, the Court asked the government to explain “why” the Court shouldn’t hear the issue now…. So I guess they have been thinking about this and decided maybe they were wrong to make these men wait another year or two before deciding that the law is unconstitutional….
That is our hope anyway.

No Unlawful Enemy Combatants at Guantanamo

From Jurist: Op-ed by Marjorie Cohn, president of the NLG:

In 2002, Donald Rumsfeld famously called the detainees at Guantánamo "the worst of the worst." General Richard B. Myers, former chairman of the Joint Chiefs of Staff, warned they were "very dangerous people who would gnaw hydraulic lines in the back of a C-17 to bring it down." These claims were designed to justify locking up hundreds of men and boys for years in small cages like animals...GO TO ARTICLE

The Gray Lady gets it right:

Today's leader in the Times tells it like it is; Guantánamo is a national disgrace. The editorial is dead-on when it comes to the CSRTs, which it accurately describes as "kangaroo courts that give the inmates no chance to defend themselves, allow evidence that was obtained through torture and can be repeated until one produces the answer the Pentagon wants." As those who have followed Mr. Al-Ghizzawi's sad story know, he was found to be a non enemy combatant by his CSRT. It was only through a rigged do-over tribunal that he was classified as an EC.

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Editorial

Gitmo: A National Disgrace
Published: June 6, 2007

Ever since President Bush rammed the Military Commissions Act of 2006 through Congress to lend a pretense of legality to his detention camp at Guantánamo Bay, Cuba, we have urged Congress to amend the law to restore basic human rights and judicial process. Rulings by military judges this week suggest that the special detention system is so fundamentally corrupt that the only solution is to tear it down and start again.

The target of the judges’ rulings were Combatant Status Review Tribunals, panels that determine whether a prisoner is an “unlawful enemy combatant” who can be tried by one of the commissions created by the 2006 law. The tribunals are, in fact, kangaroo courts that give the inmates no chance to defend themselves, allow evidence that was obtained through torture and can be repeated until one produces the answer the Pentagon wants.

On Monday, two military judges dismissed separate war crimes charges against two Guantánamo inmates because of the status review system. They said the Pentagon managed to get them declared “enemy combatants,” but not “unlawful enemy combatants,” and moved to try them anyway under the 2006 law. That law says only unlawful combatants may be tried by military commissions. Lawful combatants (those who wear uniforms and carry weapons openly) fall under the Geneva Conventions.

If the administration loses an appeal, which it certainly should, it will no doubt try to tinker with the review tribunals so they produce the desired verdict. Congress cannot allow that. When you can’t win a bet with loaded dice, something is wrong with the game.

There is only one path likely to lead to a result that would allow Americans to once again hold their heads high when it comes to justice and human rights. First, Congress needs to restore the right of the inmates of Guantánamo Bay to challenge their detentions. By the administration’s own count, only a small minority of the inmates actually deserve a trial. The rest should be sent home or set free.

Second, Congress should repeal the Military Commissions Act and start anew on a just system for determining whether prisoners are unlawful combatants. Among other things, evidence obtained through coercion and torture should be banned.

And Congress should shut down Guantánamo Bay, as called for in bills sponsored by two California Democrats, Representative Jane Harman in the House and Senator Dianne Feinstein in the Senate. Both lawmakers are intimately familiar with the camp and have concluded it is beyond salvaging.
Their bill would close Gitmo in a year and the detainees would be screened by real courts. Those who are truly illegal combatants would be sent to military or civilian jails in the United States, to be tried under time-tested American rules of justice, or sent to an international tribunal. Some would be returned to their native lands for trial, if warranted. The rest would be set free, as they should have been long ago.

The Guantánamo camp was created on a myth — that the American judicial system could not handle prisoners of “the war against terror.” It was built on a lie — that the hundreds of detainees at Gitmo are all dangerous terrorists. And it was organized around a fiction — that Mr. Bush had the power to create this rogue system in the first place.

It is time to get rid of it.

Candace on the Airwaves

The Story, a radio progam produced by WUNC, North Carolina Public Radio, is scheduled to air an interview with Candace tomorrow. Check your local NPR station for broadcast times.

THE CIRCUS OF THE ABSURD CONTINUES

Regarding the "Order on Jurisdiction" handed down by Military Judge Brownback, this email that I received from fellow Habeas counsel Muneer I. Ahmad who is an Associate Professor of Law at American University sums up the decision best:

As you have probably seen by now, the military judge in Omar Khadr's case dismissed the charges against him on the ground that the MCA gives the commissions jurisdiction only over "unlawful enemy combatants," and the CSRT established only that he was an "enemy combatant." The government has indicated its intention to appeal this ruling--it has 72 hours in which to file a notice of appeal--but the Court of Military Commission Review has not been established. So, the government will be filing its appeal with a non-existent court.

Par for the course at Guantanamo.

As an astute blogger on Salon noted: "This administration even fucks up at fascism."
Read the full text of the military judge's order HERE.

More on Soviet Torture Techniques

Yesterday, the New York Times revealed more details on how KGB interrogation techniques have been studied and reverse-engineered by the U.S. in its "war on terror." The Soviets, like the Bush administration today, denied that these methods amounted to torture. A 1956 report, "Communist Interrogation,” reads as follows:

The effects of isolation, anxiety, fatigue, lack of sleep, uncomfortable temperatures, and chronic hunger produce disturbances of mood, attitudes and behavior in nearly all prisoners. The living organism cannot entirely withstand such assaults. The Communists do not look upon these assaults as “torture.” But all of them produce great discomfort, and lead to serious disturbances of many bodily processes; there is no reason to differentiate them from any other form of torture.

Jeppesen, Making Every Mission Possible

From the BBC: GTMO-inmate, Binyam Mohamed, is suing Jeppesen Dataplan (a subsidiary of Boeing) for facilitating secret CIA flights transporting prisoners between Guantánamo and other American facilities. Our friends at the U.K.-based Reprieve filed the papers.

Check out Jeppesen's hilarious Vision and Values statement. It includes such items as "we value integrity and live it by speaking the truth with respect and doing the right thing" and "we value people by treating all with respect."

Jeppesen should start living up to its stated values and do "the right thing" by not fueling, ground-handling and paying crew fees for CIA rendition flights.

NO WAY OUT

This story has been bugging me all week… the notion that these men who have sat at Guantánamo for five + years... and a handful might actually be tried in front of a military commission in a proceeding that has been stacked against them from the get go…. What should happen if any of them managed to get acquitted from that kangaroo court?…. Well it would not mean that they would be released... because they are dangerous guys and the war on terror is ongoing….

http://www.theglobeandmail.com/servlet/story/RTGAM.20070530.wkhadr30/BNStory/International

Why bother with the dog and pony show?