Friday, June 29, 2007


Congrats to the Boumediene and Al-Odah teams:




The petitions for rehearing are granted. The orders entered April 2, 2007, denying the petitions for writs of certiorari are vacated. The petitions for writs of certiorari are granted. The cases are consolidated and a total of one hour is allotted for oral argument. As it would be of material assistance to consult any decision in Bismullah, et al., v. Gates, No. 06-1197, and Parhat, et al., v. Gates, No. 06-1397, currently pending in the United States Court of Appeals for the District of Columbia Circuit, supplemental briefing will be scheduled upon the issuance of any decision in those cases.

Wednesday, June 27, 2007

Correcting Col. Moe

Some of our favorite people (Mark, Wells, Gita) wrote letters to the editor of the NY Times in response to Col. Morris Davis' laughable op-ed.

Here is a selection:

Col. Morris D. Davis (“The Guantánamo I Know,” Op-Ed, June 26) describes a pristine prison where detainees are given three meals a day. What he ignores is that Guantánamo’s new prison facilities subject detainees to virtually total and continuous isolation in tiny windowless cells.

Particularly galling is Colonel Davis’s assertion that David Hicks, the only person to be convicted by military commissions, stipulated that he had been “treated properly.” In fact, this carefully worded statement, which Mr. Hicks had to make as a condition of his plea agreement, said only that he had not been “illegally treated.” This concession means little for a government that has interpreted waterboarding as compliant with United States law.

In a previous court filing, Mr. Hicks alleged being beaten repeatedly, sodomized and forced into painful stress positions while in United States custody. If one of Colonel Davis’s soldiers were picked up by Iran or North Korea and held for years in solitary confinement in a small, windowless room, do you think he would be praising the detention as “clean, safe, and humane”?

Jennifer Daskal

Senior Counterterrorism Counsel

Human Rights Watch

Washington, June 26, 2007

To the Editor:

Col. Morris D. Davis paints Guantánamo as a model, humane prison in which the rule of law reigns. If only it were so.

My clients are enduring their sixth year of detention at Gitmo. None have even been charged with a crime. Because they are unlikely to ever face trial, they will never have the opportunity to see the secret evidence against them. They will never have a chance to refute the coerced, hearsay statements that have so far justified their detention.

The government claims that it can hold them in this legal limbo for the duration of our war on terror. The extreme isolation and conditions my clients face are unbearable.

Many have been punished for disciplinary infractions by having their beards shaved. Most have been stripped of their trousers so that they cannot pray while modestly dressed. Some have been interrogated at gunpoint and threatened with rendition.

One of my clients recently tried to slit his wrists, explaining to me afterward that death would be more merciful than life here.

There is nothing “contrived” about these facts. Marc Falkoff

Chicago, June 26, 2007

The writer, an assistant professor of law at Northern Illinois University, represents 16 Yemeni detainees at Guantánamo.

To the Editor:

The Guantánamo that Col. Morris D. Davis knows is obviously not the same prison where our clients have been held without charge or trial for more than five years.

Majid Khan and Mohammed Al Qahtani have been tortured so badly that any evidence against them would be inadmissible under any legal standard.

Hundreds of men waste away in isolation in small metal cells that any regularly constituted court would reject as a violation of United States and international law. None have received a fair hearing. The results are predictable: four detainees are dead, nearly a hundred suffer from mental illness, and countless others continue to suffer abuse daily.

Guantánamo Bay is a failure. Its existence demeans and threatens our nation. It must be closed now.

J. Wells Dixon

Gitanjali S. Gutierrez

New York, June 26, 2007

The writers are staff attorneys at the Center for Constitutional Rights.

To the Editor:

Col. Morris D. Davis paints a rosy picture of Guantánamo Bay and the military commissions. I traveled there three weeks ago; the Guantánamo I came to know is starkly different from the place he describes.

The commissions fall well short of international standards, including by permitting the use of evidence obtained under coercion. The likelihood is high that someone on trial before the military commissions will have been coerced during his detention.

The Defense Department’s own investigations document that detainees have been kept awake all night, subjected to loud music and extreme hot and cold temperatures, and beaten.

Regardless of actual conditions, the arbitrary deprivation of liberty is inherently inhumane. When people can be held without being charged, and denied real opportunities to challenge their detention, America’s image and authority in the world are undermined.

Guantánamo and the military commissions are unworthy of a nation that prizes justice and aspires to lead the world.

Priti Patel

Associate Attorney

Law and Security Program

Human Rights First

New York, June 26, 2007

Dick the Torturer

It should come as no suprise that Dick Cheney's people played a key role in setting the interrogation guidelines for prisoners captured in the "war on terror." According to the Washington Post,
Cheney and his allies ... pioneered [emphasis added] a distinction between forbidden "torture" and permitted use of "cruel, inhuman or degrading" methods of questioning. They did not originate every idea to rewrite or reinterpret the law, but fresh accounts from participants show that they translated muscular theories, from Yoo and others, into the operational language of government.
These brave pioneers in Office of the VP have now homesteaded well beyond the frontiers of fantasy. As we have learned in recent days, Dick Cheney now functions as senator at large and operates within the legislative as well as executive branch. What future powers will the VP assume? Supreme Court Justice? Commissioner of Baseball? Holy Roman Emperor? Pope?

Portrait Of A Gitmo Propagandist

(Originally on Huffington Post)

Colonel Moe is at it again. Perhaps you remember when Moe wanted Major Mori, the military attorney that was appointed to represent the Guantánamo detainee from Australia, brought up on charges for doing too good of a job for his client? Aside from the fact that Moe apparently prefers intimidation as a legal technique, the Colonel also fancies himself a master of spin. In 2004 the chief prosecutor for the Office of Military Commissions wrote a how-to guide for manipulating the media complete with a six-point plan, "Effective Engagement in the Public Opinion Arena: A Leadership Imperative in the Information Age" which he published in Air & Space Power, an official journal of the Air Force.

In this telling little treatise, Moe concedes that the public has "questions about operations in Iraq, prisoner abuse allegations at military confinement facilities, etc. Moe maintains that these challenges require the Armed Services to seriously beef up their public relations campaign. As the Colonel so eloquently puts it,
For better or worse, public opinion matters. Public opinion affects the political arena and can influence funding, oversight and direction to the Department of Defense ... military's historical approach to responding to controversy is inadequate in today's instantaneous information age. The military's rules of engagement in the competition for the public's opinion need to be reassessed.
Moe reminds military authorities to craft a message and "stay on the offensive" and notes approvingly that Air Force training now involves extensive media relations instruction including such courses as The War for Public Opinion: Propaganda, Public Affairs and the Military-Media Relationship, which might as well be called Misinformation 101.

Today, Moe was given one of the most prized bullhorns in American media, an op-ed in the New York Times, the "paper of record." In his editorial, Moe maintains that the Guantánamo he knows really isn't that bad; he brags that the facilities are similar to high security prisons in Indiana and Michigan! Of course, the crucial difference between lawful civilian jails in the United States and Bush's illegal prison camp is not the architecture but the fact that prisoners in the United States have been charged or convicted of crimes whereas the vast majority of Guantánamo's inmates have never and, according to the government, will never be charged with anything at all. Many of these men have been cleared for release by the government's own procedures and yet they continue to languish in Bush's gulag in solitary confinement under the harshest of conditions. Many of these men are being held in cells constructed entirely of metal. The cells admit no natural light or air and they cannot converse with anyone while in their cell unless they kneel on the floor and attempt to shout greetings through the tiny gap where the food is pushed in. They pass their days in tedium and loneliness.

Unlike the prisoners being held in our supermax facilities the men at Guantánamo are not allowed any family visits or phone calls, they are only allowed one book per week, they are given no newspapers, they are not allowed to watch television, they cannot listen to a radio, they cannot take classes (they are forbidden from learning English) and most of these men are not allowed to touch another human being...not even thru the mesh link fence of the outdoor pens.

Moe is quite simply lying when he says that Guantánamo prisoners are offered "at least two hours of outdoor recreation each day." First, there is nothing recreational about standing outside in the blistering sun in a six foot by four foot pen (no shade allowed). Second, prisoners in Guantánamo's newest Camp 6 have gone for days and weeks without being allowed into those stifling pens. It is also a regular practice of the authorities to wake prisoners in their sleep and offer them outdoor "recreational time" time in the middle of the night. In the spirit of dignified resistance, the prisoners often refuse.

The Colonel touts Guantánamo's medical services, which are administered by "the same practitioners who treat American service members." In fact, Guantánamo's medical authorities have been cruelly negligent with my Libyan client, Al-Ghizzawi who is racked with abdominal pains that may indicate life-threatening liver cancer. The GTMO medical staff keeps the prisoners entirely in the dark about their medical condition and my client was not informed that he had been diagnosed with hepatitis b and tuberculosis until these facts were revealed in a government brief. I was the one to give Mr. Al-Ghizzawi the news of his condition. Finally and perhaps most egregiously, medical personnel in Guantánamo violate their Hippocratic oaths by participating in punitive force-feeding, an excruciating and degrading procedure in which a tube is forced down a prisoner's esophagus long before the prisoner is in any health risk from a hunger strike (which is itself an act of conscience undertaken by powerless and victimized persons throughout history).

Moe refers to PR work as "engagement in the public opinion arena." In military terminology, "engagement" means combat or a hostile exchange and indeed, Moe's articles and interviews constitute a propaganda assault on the American people. The Colonel has become a central figure in a DoD propaganda campaign against a public that is growing increasingly aware of, and hostile to, the Bush administration's program of illegal indefinite detention, endless war and secrecy. Colonel Moe Davis: remember his name and remember that he is a propagandist by trade.

Monday, June 25, 2007

A disturbing window into the CSRT process:

Lieutenent Colonel Stephen Abraham of the U.S. Army Reserves, (a Newport Beach attorney in his civilian life) has seen the CSRT (combatant status review tribunal) process first hand. He has been on a tribunal himself and has served as a go-between various agencies compiling information for the tribunals.

In a sworn statement submitted to the Supreme Court in the Al-Odah and Boumediene cases, Abraham makes it clear that the CSRT is a sham process and that the limited review of the CSRT findings provided by the Detainee Treatment Act are an inadequate substitute for habeas corpus. In poking around various intelligence agencies and offices, Abraham found that there was never any serious attempt to compile possible exculpatory information regarding a prisoner, and that the officers involved in compiling information for the CSRT recorder were often inexperienced and had no legal or intelligence expertise.

Abraham's description of his own experience on a CSRT does not inspire any confidence in the process:

On one occasion, I was assigned to a CSRT panel with two other officers, an Air Force colonel and an Air Force major, the latter understood by me to be a judge advocate. We reviewed evidence presented to us regarding the recommended status of a detainee. All of us found the information presented to lack substance.

What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence. Statements allegedly made by percipient witnesses lacked detail. Reports presented generalized statements in indirect and passive forms without stating the source of the information or providing a basis for establishing the reliability or the credibility of the source. Statements of interrogators presented to the panel offered inferences from which we were expected to draw conclusions favoring a finding of “enemy combatant” but that, upon even limited questioning from the panel, yielded the response from the Recorder, “We’ll have to get back to you.” The personal representative did not participate in any
meaningful way.

On the basis of the paucity and weakness of the information provided both during and after the CSRT hearing, we determined that there was no factual basis for concluding that the individual should be classified as an enemy combatant.
After reaching its decision, the Director of OARDEC, Rear Admiral McGarrah, immediately questioned the panel's findings and ordered the CSRT reopened. The panel stuck to its guns and decided that the prisoner could not be classified as a non-enemy combatant. Needless to say, Abraham was never asked to be on a CSRT again. If the detainee in question was one of those unlucky ones that went through multiple "do-over" CSRTs, it may be that another panel later found him to be an "enemy combatant." This even could have been our client Mr. Al-Ghizzawi. In Mr. Al-Ghizzawi's "first" CSRT he was found to not be an enemy combatant. Six weeks later a new panel was convened and based on the same evidence they found him to be an enemy.

Wednesday, June 20, 2007

Press release from the Australian Bar Association:

Honorary Membership for Major Dan Mori

June 19 2007

The Australian Bar Association will present Major Michael D Mori USMC with Honorary Membership at its Conference dinner on 29 June 2007. The award of honorary membership made for exceptional service to justice and the rule of law is due recognition of Major Mori’s passionate and fearless advocacy for Guantanamo Bay detainee David Hicks, an Australian convicted of providing material support for terrorism.

Stephen Estcourt QC, President of the Australian Bar Association, said: “This award of honorary membership recognises the work done by Dan Mori in consistently seeking to have his client dealt with fairly and in accordance with the rule of law. It is the time-honoured role for an advocate to stand between the state and an individual. Major Mori did that and did it in the best tradition of an advocate.”

Michael Dante Mori (born October 4, 1965) is a major in the United States Marine Corps. He spent four years in the enlisted ranks, reporting for training at the USMC Recruit Depot at Parris Island, South Carolina. After attending Norwich University, a military college, he became an officer in the Marine Corps. In 1994 he graduated from the Western New England College School of Law in Springfield,Massachusetts, before being admitted to the Bar in Massachusetts. He is married and has twin boys. A sister lives in Australia.

Mori was appointed by the United States Department of Defence to represent Hicks in November 2003, and continued to handle Hicks’s case until May 2007. Mori has been featured on numerous occasions in the Australian media in relation to developments in Hicks’s case, and he frequently expressed concern over Hicks’s extended interrogations and the delays in bringing his client to trial. Major Mori has defended his client in the public and political sphere both in Australia and the USA. He was one of the 2005 recipients of the American Civil Liberties Union’s Roger N. Baldwin Medal of Liberty Award, which was presented “to the five military defence lawyers who represented the first round of defendants at the Guantánamo Bay tribunals and challenged the entire military commission system.”

On November 10, 2006 Mori attended the signing of the Fremantle Declaration by the Attorneys-General of the States and Territories of Australia. The declaration urges judicial fairness to protect the legal rights of Australians at home and abroad. Mori said “It’s disheartening that federal ministers won’t fight for an Australian citizen to have the same rights as an American.” On February 15, 2004, during an interview for one of Australia’s leading current affairs television programs, Mori summarized his passionate belief in justice and the rule of law: “America’s always had a proud tradition of ensuring fairness and due process. Now’s not the time to sacrifice those values.”

Following Hicks’s departure from Guantanamo Bay to complete his sentence in Yatala Prison, South Australia in mid May 2007 - Mori was re-assigned as a staff judge advocate, or legal adviser, to the commanders of Marine Corps Air Station Miramar in San Diego.

Read the original version HERE.

Monday, June 18, 2007

The Assault on Lawyers

Scott Horton, a New York-based attorney and the author of the weblog No Comment has a article coming out in the July issue of Harpers, examining the Bush administration's assault on habeas counsel. As Horton notes,
The habeas laywers have been tarred with ethnic slurs and accusations of homosexuality, accused of undermining national security, subjected to continual petty harassment. They have also had their livelihoods threatened through appeals to their paying clients. These events have been reported as separate incidents in the press, but this conduct results from a carefully orchestrated Bush Administration policy that goes under the rubric of "lawfare."
Horton is, of course, referring to the gay-baiting of Clive Stafford Smith, the Jew-baiting of Tom Wilner, Cully Stimson's ill-conceived scheme to organize a boycott of firms involved in pro bono Guantánamo work and a host of other abuses and attacks on Gitmo lawyers by the Bush gang.

On this blog and through Candace's articles, we have tried to draw attention to this campaign against habeas counsel and military defense lawyers (most notably Major Mori). Here is a selective digest (ah, the memories!):

Locking Attorneys out of Guantánamo
Is there a Larry Lurking in the Bushies?
The Gagging of Michael Mori
Moe and His-Six Point Plan
Moe Davis Takes a Page from Ho Chi Minh's Playbook
An Open Letter to Cully Stimson

Candace herself has been subjected to outrageous bureaucratic games and harassment. When Candace tried to meet with Razak Ali, her Algerian client, the authorities at the base effectively pretended that no such person existed although Candace had the correct spelling and ISN number (not to mention a court order authorizing the visit). Upon returning from Guantánamo she filed a motion to show cause asking why the government should not be held in contempt of court; the judge gave the government a thorough dressing down.

Since that date, Candace has been "punished" with a special military escort who follows her every move at the base. Candace actually enjoys this special treatment (it means shorter lines). She does not enjoy the fact that her notes are reviewed by the authorities and military personnel have made unsettling and alarmingly well-informed remarks about her client meetings, her work and her family. Candace was also part of a group of lawyers who were informed that a FOIA request had been made about habeas counsel violations of the protective order governing attorney-client access and communications. In the past, these conveniently timed requests have come from government-friendly right-wing media outlets ... all part of the Bush administration's assault on lawyers.... So what was Candace's violation? Apparently on one occasion she filed a court document without sending it in for prior review... of course the document was for her client Razak- Ali for whom she has no classified, confidential or protected information, so the fact that she even had to send it in for approval befpre filing is annoying to say the least.... but it is the rule and Candace humbly apologized for her oversight..,.

Sunday, June 17, 2007

More on the Kadr and Hamdan dismissals in Justinian

Roger Fitch has another excellent piece in the Australian law journal, Justinian. Fitch offers an analysis of the recent decisions by military judges Brownback and Allred and untangles the badly bungled categories of "unlawful enemy combatant" and "enemy combatant."
Under the MCA, a defendant must be an “unlawful alien enemy combatant”, and this has been duly alleged in “war crimes” charges. However, the CSRTs, whose decisions are “dispositive” under the MCA, have used the meaningless “enemy combatant” status concocted by the Bush administration.

As the LA Times noted in its report of the proceedings, the Bush lawyers eliminated the lawful and unlawful distinction in order “to deprive the war-on-terror suspects of POW rights and living conditions”.

The CSRTs have no legal basis in any statute or regulation. They were diversions set up by the Pentagon within ten days of the 2004 decision of the Supreme Court in Rasul (Hicks), the case that confirmed the right of Guantanamo detainees to have habeas corpus hearings in Washington federal courts.

Being ad hoc and extralegal, the CSRTs conscientiously tracked other Bush flummeries such as the wholly imaginary “enemy combatant”, a fabulation designed by Bush lawyers in the ignorant belief that it would fall outside both criminal law and the law of war. The only alternative status was “no longer an enemy combatant.” That no such categories existed under the Geneva Conventions or international law was of no moment.

In fact, CSRTs ask the wrong question. They present detainees with “a paralysing Catch 22”. Admitting membership in the Taliban makes one an “enemy combatant”, which (the Pentagon claims) precludes PoW status. But denying involvement with the Taliban leaves a prisoner unable to show that he is entitled to PoW treatment. It’s diabolical.

Even if CSRTs provide a bare justification for holding prisoners taken on a battlefield, the omission of a determination of combat status means they can confer no “war crimes” jurisdiction over defendants.

Now, in decisions of separate military judges in Guantanamo, this legislative flaw has caused the dismissal of both the Khadr and Hamdan military commissions. As many noted, the striking effect of the decisions, particularly in the case of Hamdan, is to find that there are in fact no “unlawful enemy combatants” in Gitmo. READ THE FULL ARTICLE HERE
We also learn that the phrase "Homeland Security," like "enhanced interrogation," has a pretty unsavory history.
In earlier reports I have noted the Tendenz of the Buschvolk to appropriate old Nazi expressions for their more unsavoury experiments, e.g. Heimatssicherheit morphed into the identically named Homeland Security.

Now the astute blogger Andrew Sullivan has discovered the origins of the CIA’s infamous techniques of “Enhanced Interrogation”.

As Sullivan found, it’s a translation of verschaerfte Vernehmung (literally, “sharpened” interrogation). The techniques described in the Nazi protocol are also much the same, although the Nazis didn’t include die Wassertortur in their list of delights.

Some things just don’t lend themselves to literal translations: the Fuehrer Prinzip has been adapted to the Unitary Executive Theory.

Read more of "Our Man in Washington" from Justinian.

Monday, June 11, 2007

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.

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


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

Wednesday, June 6, 2007

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.

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.



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.

Tuesday, June 5, 2007

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.

Monday, June 4, 2007


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.

Sunday, June 3, 2007


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….

Why bother with the dog and pony show?


From Time this week “ Detainee abuse was well planned”, confirmation that many of the “interrogation techniques” used on the detainees stems from techniques “the U.S. feared that the Communists themselves might use against captured American troops during the Cold War”,8599,1627229,00.html?xid=site-cnn-partner

“This troubling disclosure was made in the blandly titled report, "Review of DoD-Directed Investigations of Detainee Abuse", which for the first time sets forth the origins as well as new details of many of the abusive interrogation techniques that led to scandals at Abu Ghraib, Guantanamo and elsewhere — techniques that some critics contend the Pentagon still has not gone far enough in explicitly banning. Sen. Carl Levin, chairman of the Senate Armed Services Committee, called the findings "deeply troubling," and signaled his intention to hold hearings later this year on the interrogation methods it describes.”