Saturday, September 29, 2007

BACK FROM HELL (updated)

No it was not Mr. Al-Ghizzawi that was released a few days ago. I got back late thursday from my latest trip to Gitmo. Mr. Al-Ghizzawi is still alive, barely, and since no one "in charge" seems to be inclined to try to save his life ... . I don't figure he will be with the living much longer.
So what do you say to a man sitting across the table from you who is dying before your eyes because of the policies of your country? Somehow "sorry" doesn't quite cut it.... So I promised Mr. Al-Ghizzawi that his death will not go unnoticed... doesn't seem like much but until I come up with another plan that will have to do.
I will tell you this, the government will not be able to claim that Mr. Al-Ghizzawi's death is an "apparent suicide" like they did with the last death... you might not have even heard about that death, or if you did you probably didn't think twice about it after you heard it was an "apparent suicide".... just another dead detainee?
Unfortunately it was an "apparent suicide" because the military can get away with making bullshit announcements like that. The man (the detainee) died of medical neglect.. like Mr. Al-Ghizzawi he also suffered from Hepatitis B and TB and was not being treated. He got weaker and weaker and then died, alone in his cell.
The government can get away with calling it an "apparent suicide" because that detainee was not represented by a lawyer so there was no one to raise hell on his behalf.... and well lets be honest, no one in this country that is in a position to do anything about the men at Guantanamo(the courts and/or congress) gives a shit. I said in this posting earlier today that "not one reporter in our so called fourth branch has even looked into that death... but since two of the other branches are sitting by the sidelines while the executive runs roughshod over our constitution why should the fourth branch be any different?" Shortly after I posted this I received a call from AP's Ben Fox... he reminded me that he has been trying to do a story about this man but cannot get people to talk on the record, can't get any records and cannot get confirmations when someone does talk...
So I am updating my post to let all of you know that someone is at least trying to do the story. Thank you Ben.
Anyway Mr. Al-Ghizzawi's death will not be as quiet.... I promise.

Sunday, September 23, 2007



According to Disney, i.e. the US ABC, the CIA will abandon its controversial practice of waterboarding.

Of course, this “enhanced interrogation technique” – known throughout history as water torture – has only been used on “suspected terrorists” and “enemy combatants”.

Still, it was heart-warming to learn that its use will no longer be official policy of the United States government.

Revealingly, the news reports say that the practice has now been removed from a presidential edict, or bushwah of 2002, when our Dear Leader “authorised” it.

That’s interesting, as it would appear to be a per se indictable war crime. However, we shouldn’t be surprised. A couple of years ago, University of Houston law prof Jordan Paust wrote what now seems a prophetic article on such illegal orders of the Bush administration.

So it seems the CIA will now cease waterboarding, perhaps as a gesture of goodwill. Yet, as Yale prof Jack Balkin pointed out last year:

“Even if waterboarding were not ‘torture’, as defined in the law, it would still violate at least three legal prohibitions, even when conducted by the CIA.”

Other techniques, also crimes, continue.

As Balkin noted, it has always been against US law to assault people on US premises, under the federal assault statute (18 USC 113), “which provides that simple assaults, or assaults by striking or beating, are misdemeanours if they occur ‘within the special maritime and territorial jurisdiction of the United States’.” That includes:

“The premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership.”

The description would seem to cover the borrowed torture dungeon in Poland where it is said that the “architect of 9/11”, Khalid Sheik Mohammed (pic), was submerged into submission.

Then there is Common Article Three of the Geneva Conventions, which prohibits all “cruel treatment and torture”.

How about the Detainee Treatment Act? The McCain Amendment prohibits cruel, inhuman and degrading treatment including, Jack Balkin says, all conduct that would “shock the conscience” under the Due Process Clause to the US constitution.

Tellingly, that vital fifth vote on the Supreme Court, Justice Anthony Kennedy (seen here), includes within that, “torture or its close equivalents.”

Finally, waterboarding is torture prohibited by the federal torture statute (18 USC 2340-2340A). Although the DoJ’s Office of Legal Counsel seems to have disagreed, Balkin argues that:

“Waterboarding is perhaps the classic, paradigmatic technique of acknowledged torture regimes throughout history, from the Spanish Inquisition to the Khmer Rouge.”

After Vice President Cheney explicitly backed waterboarding last year, Human Rights Watch pointed out that, before Bush, the US government had always considered waterboarding to be torture and a war crime. According to HRW:

“As early as 1901, a US court martial sentenced Major Edwin Glenn to 10 years of hard labour for subjecting a suspected insurgent in the Philippines to the ‘water cure.’ After World War II, US military commissions successfully prosecuted as war criminals several Japanese soldiers who subjected American prisoners to waterboarding. A US army officer was court-martialled in February 1968 for helping to waterboard a prisoner in Vietnam.”

It’s unclear whether ending water cures will aid the pending Senate confirmation of the torture-endorsing CIA lawyer, John Rizzo.

He wants to be the CIA’s General Counsel but some senators have vowed to block him due to his view that the infamous 2002 torture memorandum of the Justice Department was “reasonable”.

Meanwhile, another “enemy combatant”, one Inayatullah, has been sent to Guantanamo, presumably from a CIA black site.

Although he arrived with a confession in hand, there has been no indication whether he received the water treatment. If he did, history may record he was one of the last.

* * *

In any case, what is the cruel treatment of “terrorists” and “enemy combatants”, compared to the everyday abuse of pro bono Guantanamo lawyers?

Consider the Case of the Planted Pants. Just this month, the Pentagon accused a distinguished Guantanamo Bar Association member, Clive Stafford Smith (pic), of trafficking in underpants and Speedos at Gitmo.

Fellow GBA lawyer Candace Gorman has copies of the letters ‘twixt Clive and the hapless Staff Judge Advocate who made the demeaning inquiry.

In an answer heavy with irony, Stafford Smith was able to “briefly respond” to the hurtful allegations of jocks-and-Speedo smuggling, but wouldn’t “allow the issue of the underwear to drop”.

He noted that his own research had revealed the popularity of the implicated brand, Under Armour, among US troops – the likely source for the contraband. He also disavowed the Reprieve lawyers having stripped down in jail to provide unapproved underwear to their clients.

It’s all part of the job for Gitmo lawyers. The government has had military personnel pose as lawyers in efforts to extract information from detainees.

The Pentagon has warned detainees that because their lawyers are Jewish (many are), they can’t be trusted; darkly hinted that their lawyers are homosexual; claimed that the defence lawyers really work for the government; and so on.

The military has seized lawyers’ papers on the pretext that they carry coded messages. Lawyers returning from Guantanamo have even been searched in Florida when deplaning. Is it, perhaps, to confirm underwear is being worn?

Obstruction, delays, insults, humiliation and degradation: the members of the GBA have come to expect it.

* * *

The misadventures of Guantanamo lawyers such as Candace Gorman and Clive Stafford Smith are being collected on a website of the University of California-Davis.

However, at the new UC-Irvine law school, the appointment of a dean, the distinguished legal scholar Erwin Chemerinsky, was withdrawn due to his controversial support of lost causes, including Guantanamo detainees.

The affair caused outrage throughout the legal establishment and attracted the criticism of The New York Times before the “too-liberal” professor was re-hired as dean.

* * *

Ironically, Professor Chemerinsky’s criticism of Alberto Gonzales figured in the UC-Irvine fallout. Now, Gonzales is gone and Bush has nominated as attorney general the retired judge Michael Mukasey (pic).

As a US District Judge in New York, Mukasey was involved in the early stages of Jose Padilla’s “enemy combatant” interlude. Curiously, Mukasey agreed with the novel and fanciful “EC” designation of an American citizen on American soil, while breaking with the government on the denial of counsel.

In a Salon piece, lawyer-blogger Glenn Greenwald claims Mukasey showed considerable independence from the Bush administration in Padilla’s case and The Washington Post noted Mukasey’s alleged testy relationship with the Department of Justice.

Unlike the Post, The New York Times doesn’t think it’s a great idea to have a president running around declaring Americans to be “enemy combatants”, and so has reservations about Michael Mukasey.

In the meantime, it’s been disclosed that the White House doesn’t really need placemen at DoJ, as there are now 417 White House officials authorised to talk to 30 Justice Department officials about pending cases. As one story put it:

During the Clinton administration, there were just four people in the White House – the President, the Vice President, the White House Counsel, and the Deputy White House Counsel – who could participate in discussions with the Justice Department ‘regarding pending criminal investigations and criminal cases’. There were just three Justice Department officials authorized to talk with the White House. This arrangement was intended to restrict political interference in the administration of justice.

* * *

The mystery of where George W. Bush derives his power to issue Royal Proclamations has been partly solved.

This month Mr Bush observed the 6th anniversary of the September 11th attacks by declaring a National Emergency (the dreaded “terrorist threat”) for the 7th year in a row.

That serves to activate his alleged powers to issue bushwahs such as the one on Lebanon I reported in my last post.

Wednesday, September 19, 2007


Yes, we are a political family. Last week my brother Bob announced that he will challenge the ethically challenged Congressman Weller from the south suburbs of Chicago. On the heels of Bob's challenge Weller is expected to announce tomorrow that he has decided to spend more time with his family...not to mention his investments... and is slinking out of Congress... steps ahead of the law?
Way to go Bro Bob....

Still no Habeas Corpus rights for detainees (and non citizens)

Today our senate considered a bill that would restore habeas corpus rights to non-citizens, including the guantanamo detainees. Six Republicans -- Arlen Specter, Olympia Snowe, Chuck Hagel, Richard Lugar, John Sununu and Gordon Smith -- joined every Democrat in voting for cloture on the habeas corpus provision. Joseph Lieberman voted "no" as did all of the other republicans.
If your senator was one of the "NO" votes give him or her hell.... and let them know you will be working to vote them out in their next election.

Tuesday, September 18, 2007

Talking Dog interviews Andy Worthington

If you have not been to The talking dog website go now :

and find interviews with many of the habeas counsel who are, or have been, involved in the guantanamo litigation (including yours truly) as well as individuals who have been involved in researching and/or writing about Guantanamo.
This week the Talking Dog interviewed Andy Worthington, author of the soon to be released:

"The Guantanamo Files:the Stories of the 774 Detainees in America's Illegal Prison"

I had the honor of being one of the individuals to read the book prior to publication and it is by far the most comprehensive book regarding the individuals that are, or have been, held at Guantanamo...

And while you are out in cyberspace checking out the Talking Dog head over to Andy Worthington's website where you can read about his book, preorder a copy... and read some of his recent posts updating us on the war crimes at guantanamo.

Saturday, September 15, 2007


We attorneys have been accused of lots of under handed things by the military (on one occasion when the military screwed up and wouldn't let me see my client they filed a false affidavit in court claiming I did not want to see my client but instead wanted to go bird watching...) now one of the habeas counsel is accused of surreptitiously supplying underwear to two of his clients.... contraband underwear... and a speedo....
you really have to read both letters (below) to understand just how lame the military is.....

August 12, 2007

Re: Discovery of Contraband Clothing in the Cases of Shaker Aamer, Detainee ISN 239, and Muhammed Hamid al-Qareni, Detainee ISN 269

Dear Mr. Stafford Smith.

Your client, Shaker Aamer, detainee ISN 239, was recently discovered to be wearing Under Armor briefs and a Speedo bathing suit. Neither item was issued to the detainee by JTF-Guantánamo personnel, nor did they enter the camp through regular mail. Coincidentally, Muhammed al-Qareni, detainee ISN 269, who is represented by Mr. Katznelson of Reprieve, was also recently discovered to be wearing Under Armor briefs. As with detainee ISN 239, the briefs were not issued by JTF-Guantánamo personnel, nor did they enter the camp through regular mail.

We are investigating this matter to determine the origins of the above contraband and ensure that parties who may have been involved understand the seriousness of this transgression. As I am sure you understand, we cannot tolerate contraband being surreptitiously brought into the camp. Such activities threaten the safety of the JTF-Guantánamo staff, the detainees, and visiting counsel.

In furtherance of our investigation, we would like to know whether the contraband material, or any portion thereof, was provided by you, or anyone else on your legal team, or anyone associated with Reprieve. We are compelled to ask these questions in light of the coincidence that two detainees represented by counsel associated with Reprieve were found wearing the same contraband underwear.

Thank you as always for your cooperation and assistance,


[Name redacted]
Commander, JAGC, US Navy
Staff Judge Advocate


29th August, 2007

Re: The Issue of Underwear (“Discovery of ‘Contraband Clothing’ in the Cases of Shaker Aamer (ISN 239) and Mohammed el-Gharani (ISN 269)”)

Dear Cmdr. [redacted]:

Thank you very much for your letter dated August 12, 2007, which I received yesterday. In it, you discuss the fact that Mr. Aamer was apparently wearing ‘Under Armor briefs’ and some Speedo swimming trunks and that, by coincidence, Mr. el-Gharani was also sporting ‘Under Armor briefs’.

I will confess that I have never received such an extraordinary letter in my entire career. Knowing you as I do, I hope you understand that I do not attribute this allegation to you personally. Obviously, however, I take accusations that I may have committed a criminal act very seriously. In this case, I hope you understand how patently absurd it is, and how easily it could be disproven by the records in your possession. I also hope you understand my frustration at yet another unfounded accusation against lawyers who are simply trying to do their job – a job that involves legal briefs, not the other sort.

Let me briefly respond: First, neither I, nor Mr. Katznelson, nor anyone else associated with us has had anything to do with smuggling ‘unmentionable’ in to these men, nor would we ever do so.

Second, the idea that we could smuggle in underwear is far-fetched. As you know, anything we take in is searched and there is a camera in the room when we visit the client. Does someone seriously suggest that Mr. Katznelson or I have been stripping off to deliver underwear to our clients?

Third, your own records prove that nobody associated with my office has seen Mr. Aamer for a full year. Thus, it is physically impossible for us to have delivered anything to him that recently surfaced on his person. Surely you do not suggest that in your maximum security prison, where Mr. Aamer has been held in solitary confinement almost continuously since September 24, 2005, and where he has been more closely monitored than virtually any prisoner on the Base, your staff have missed the fact that he has been wearing both Speedos and ‘Under Armor’ for 12 months?

Since your records independently establish that neither I nor Mr. Katznelson could not have been the one who delivered such undergarments to Mr. Aamer, this eliminates any ‘coincidence’ in the parallel underwear sported by Mr. el-Gharani. Your letter implies, however, that Mr. Katznelson might have something to do with Mr. el-Gharani’s underthings. Mr. Katznelson has not seen Mr. el-Gharani for four months. As you know, Mr. el-Gharani has been forced to strip naked in front of a number of military personnel on more than one occasion, and presumably someone would have noticed his apparel then.

Without bringing this up with me, it was therefore patently clear that my office had nothing to do with this question of lingerie. However, I am unwilling to allow the issue of underwear to drop there: It seems obvious that the same people delivered these items to both men, and it does not take Sherlock Holmes to figure out that members of your staff (either the military or the interrogators) did it. Getting to the bottom of this would help ensure that in future there is no shadow of suspicion cast on the lawyers who are simply trying to do their job, so I have done a little research to help you in your investigations.

I had never heard of ‘Under Armor briefs’ until you mentioned them, and my internet research has advanced my knowledge in two ways – first, Under Armour apparently sports a ‘U’ in its name, which is significant only because it helps with the research.

Second, and rather more important, this line of underpants are very popular among the military. One article referred to the fact that “A specialty clothing maker is winning over soldiers and cashing in on war.” See here (emphasis in original). The article goes on to say:

In August [2005], a Baltimore-based clothier popular among military service members got in on the trend. * * * Founded in 1996, Under Armour makes a line of tops, pants, shorts, underwear and other “performance apparel” designed for a simple purpose: to keep you warm in the cold and cool in the heat.

This stuff is obviously good for the men and women stationed in the sweaty climate of Guantánamo, as we could all attest.

It would be worth checking whether this lingerie was purchased from the NEX there in GTMO, since the internet again leads one to suspect that the NEX would be purveyors of Under Armour:

Tom Byrne, Under Armour’s director of new business development, told Army Times that “The product has done very well in PXes across the country and in the Middle East, and we have seen an increasing demand month after month. There is clearly a need for a better alternative than the standard-issue cotton T-shirt.”

There must be other clues as to the provenance of these underpants. Perhaps you might check the label to see whether these are ‘tactical’ underwear, as this is apparently something Under Armour has created specially for the military.

Under Armour has a line of apparel called Tactical that’s modified for soldiers. It features the same styles as civilian tops and bottoms - LooseGear for all purpose conditions, HeatGear and ColdGear, meant for hot and cold weather, as well as a line for women. But Tactical items are offered in army brown, olive drab, midnight navy and traditional black and white. Also, the Tactical section of the Under Armour Web site features military models, not athletes. In one image, a soldier poised on one knee wears a LooseGear shirt, looking as if he’d just as soon take a hill as take off on a run. His muscular arms protrude from the tight, olive-colored fabric. He’s a picture of soldierliness. And he’s totally dry.

I don’t know the color of the underpants sported by Messrs. Aamer and el-Gharani, but that might give you a few tips. Indeed, I feel sure your staff would be able to give you better information on this than I could (though I have done my best) as this Under Armour stuff apparently provokes rave reviews from your colleagues:

Soldier testimonials are effusive. On, a convenient place to buy Under Armour online, a customer who calls himself Spc. Sublett says he’s stationed in Afghanistan. Although his identity cannot be verified, Sublett does note the Tactical line’s less apparent benefits. “Sometimes I have to go long times in hot weather without showers. Under Armour prevents some of the nasty side effects of these extreme conditions. All of my buddies out here use the same thing. They’re soldier-essential equipment. The only thing that would make them better is if the Army would issue them.”

I don’t mean to say that it is an open and shut case proving that your military provided the underwear, as I understand that other people use Under Armour. One group I noticed on the web were the amateur weight lifters, who seem confused as to whether Under Armour gave them a competitive advantage. See, e.g. here (“I was wondering what the rule on Under Armour is? I wear the briefs with my squat suit – it makes it soooo much easier to get over my thighs. My first USAPL meet is coming up and I wanted to get that squared away before I show up – Thanks, [name removed]”).

However, in the grand scheme of things, I would like to think we can all agree that the interrogators or military officers are more likely to have access to Messrs. Aamer and el-Gharani than the US Amateur Power Lifting Association.

On the issue of the Speedo swimming trunks, my research really does not help very much. I cannot imagine who would want to give my client Speedos, or why. Mr. Aamer is hardly in a position to go swimming, since the only available water is the toilet in his cell.

I should say that your letter brought to mind a sign in the changing room of a local swimming pool, which showed someone diving into a lavatory, with the caption, “We don’t swim in your toilet, so please don’t pee in our pool”. I presume that nobody thinks that Mr. Aamer wears Speedos while paddling in his privy.

Please assure me that you are satisfied that neither I nor my colleagues had anything to do with this. In light of the fact that you felt it necessary to question whether we had violated the rules, I look forward to hearing the conclusion of your investigation.

All the best.

Yours sincerely,

Clive A. Stafford Smith

Monday, September 10, 2007


Over the weekend the Department of Defense released transcripts and documents from the 2006 Administrative Review Boards (ARBs). These are the kangaroom reviews of current detainees to determine if the detainee can be released or transferred. I have not had a chance to go thru the documents in any great detail... I did notice that the few detainees I checked who were recently transferred were still not listed as individuals determined to be transferable... again showing the arbitrariness and dishonesty of the charade.
I did find the transcript of Mr. Al-Ghizzawi's ARB. Seems they have added a new charge against him... that he had a casio watch. It is hard to know whether to laugh or cry as you read the transcript. Poor Mr. Al-Ghizzawi, looking for justice in all the wrong places.
I will give a more detailed look at his and other detainees hearings in the coming weeks.

Thursday, September 6, 2007

Released Saudi detainees (updatad)

We have some of the details related to the Saudi citizens that were released yesterday... once again not one of the released men was on the list of detainees that the government claims are "eligible" for release. I will be updating the information as it trickles in ...

1. Abdulhadi Abdullah Ibrahim Al-Sharikh (ISN 231) -- Gordon S. Woodward of Schnader Harrison. No advance-notice order. Counsel received no notice that this client had been deemed releasable. Habeas case but no DTA case. Camp4
2. Abdulrazzaq Abdullah Ibrhim Al-Sharikh (ISN 67) – Ditto Camp 4
3. Fahd Atiyya Hamza Al-Harazi (ISN 79) -- Heller Ehrman team. No advance-notice order.
4. Rami Sa`d Ghalib Al-Ju`aid (ISN 318) -- Steve Truitt and Charles Carpenter of Pepper Hamilton. Advance-notice order, counsel received notice. Counsel received no notice that this client had been deemed releasable. Camp 6.
5. Abdulhakim Abdulkarim Amin Bukhari (ISN 493) -- Cristi A. Charpentier, Philly federal defender. No advance-notice order. Counsel received no notice that client had been deemed releasable. Camp 1.
6. Khalid Hasan Husain Al-Barakati Al-Sharif (ISN 322) -- John C. Snodgrass and colleagues of Dickstein Shapiro. No advance-notice order. Counsel had not received any notice that client had been deemed releasable. Camp 6.
7. Majid Abdullah Sa`id Barayyan: ISN 51; unrepresented.
8. Muhammad Mubarak Salim Al-Kurbi He is ISN 342 -- Harvey A. Schwartz, Rodgers, Powers & Schwartz PC. No advance-notice order; government informed counsel of client's release mid afternoon on 9-6-97. Camp 6.
9. Abdullah Thani Faris Al-Sulami Al-Anazi (ISN 514) -- represented by Anant Raut at Weil Gotshal, who calls Abdullah "the gentle double- amputee poet of Guantanamo" No advance notice-order, no notice of releasability (in fact, because of his double amputation, one evaluation had deemed Abdullah unsuitable for repatriation ever, because his lack of legs (lost around the time he was captured) would make him "less attractive to his wife," thereby making him a "prime candidate for suicide bombing recruitment"), original habeas petitions had not been dismissed, no dta petition. Camp 6.
10. Zabin Zhahir Zabin Al-Fudaili Al-Shammari (ISN 647) -- represented by Paul, Weiss team. Jennifer Ching says "client suffers from a form of epilepsy and experienced seizures while at Gitmo." Advance-notice order, counsel received notice. Counsel received no notice that counsel had been deemed releaseable.
11. Abdulaziz Sa`d Muhammad Al-Oshan (ISN 112) -- represented by Anant Raut . Counsel received no notice that this client had been deemed releasable. Camp 5.
12. Moosa Ali Sa`id Al Sa`id Al-Omari (or Al-Amri) ISN 196; unrepre.
13. Salim Abdullah Sa`id Al Buhaish Al-Shihri (ISN 126) -- represented by Jenner
14. Fahd Muhammad Abdullah Al-Fowzan (ISN 218) -- represented by Martha Rayner and colleagues at Fordham Law School. Counsel received no notice that this client had been deemed releasable. Camp 6.
15. Imran Bakr Muhammad Hosawi (Isn 368)- unrep.
16. Bakri Awad Bakri Al-Sumairi (or Al-Samiri) (ISN 274__) unrep.


We just had confirmation that 16 Saudi citizens were sent back home yesterday including Anant Raut's client Abdullah Thani Faris Al-Anazi, the gentle double-amputee poet of Guantanamo.
There are rumors of even more transfers so stay tuned.

Wednesday, September 5, 2007


From our friends down under ( ) who are now putting up with GW visiting their land comes this post with a new term of art "Bushwah"..... see below and start using it.

Roger Fitch Esq • September 4, 2007
Our Man in Washington
It’s been a remarkable fortnight in the US, legally speaking.
The “terrorist” Jose Padilla has been convicted, and his civil suit against the US for torture disclosed.
After an unconscionable time a-dying, the man whose political death has long been predicted, Alberto Gonzales, has resigned as Attorney General.
And the briefs are in for the Guantanamo prisoners whose cases will be heard in the October Supreme Court term, including the case begun by Detainee 002, David Hicks.
In the Guantanamo appeals, some marvellous amicus briefs are linked on the website of the law firm Mayer Brown. As Scotus Blog notes, one of the most interesting is from Israel.
The Gonzales departure, however, provided the most relief to the largest number of people. The New York Times aptly summed up his dismal career.
Some, such as Sidney Blumenthal, attributed his departure to the resignation of his patron, Karl Rove, who quit two weeks ago. For The Guardian, it was a case of the ship leaving the rat.
As soon as Fredo handed in his resignation, the DoJ’s Inspector General announced an investigation into his conduct, including an inquiry into the political tests introduced for hiring of staff attorneys.
The White House has floated a list with possible replacements for Gonzales. However, according to The Wall Street Journal, the Democrats may require the appointment of an independent prosecutor to investigate Gonzales as a trade-off for the Senate’s approval of a new AG.
There is also speculation that President Bush may make a “recess” appointment, as he did with John Bolton and other unconfirmable people.
One suggested nominee for AG is the cadaverous Michael Chertoff (pic), who, in common with Fredo, has been identified as a suitable candidate for war crimes charges one day. However, writing legal “opinions” supporting torture didn’t stop Gonzales from becoming attorney general in 2005, so Chertoff’s moral ambiguities may also be overlooked.
As an assistant attorney general in 2001, Chertoff organised the railroading of Detainee 001, John Walker Lindh, when the American was captured in the Afghanistan war. It was Chertoff who prevented the legal assistance to which Lindh was entitled, and swept away concerns about his mistreatment. Democracy Now has taken another look at Chertoff’s stint in Justice.
Chertoff may also have fibbed about his knowledge of interrogation techniques when he was confirmed by the Senate for his position as Secretary of Homeland Security.
Regardless of who becomes the new Attorney General (Solicitor General Paul Clement is acting AG), US News confirms that not all lawyers in the Department of Justice are political thugs: a large number of the appellate attorneys in the department don’t want to be involved in the new Guantanamo appeals in the DC Court of Appeals.
* * *
The audacious assaults on the US legal system by Republican administrations since Ronald Reagan are now beginning to bear fruit. You will recall that Zacharias Moussaoui was sentenced to life in prison for wanting to be part of a terrorist conspiracy that was never proved. Luckily he pleaded guilty.
The Jose Padilla case was more problematic as he is a US citizen and insisted on pleading not guilty, even after three-and-a-half years of lawless imprisonment in a US Navy dungeon, designed to break his will and (perhaps) force a guilty plea.
In his Miami trial for “terrorism” offences, Padilla would have known he was in trouble when his jury showed up in colour-co-ordinated red, white and blue outfits. Once his judge (a Bush appointee) suppressed any mention of Padilla’s treatment in military custody, it seems his fate was sealed.
Jose Padilla may be a disaffected American, and he possibly attended a “terrorist” training camp in Afghanistan, but no evidence was introduced that he ever visited the country or actually trained at any camp.
In fact, the conviction itself was for little more than “thought crime”, as Columbia law prof and Harper’s blogger Scott Horton (pic) observed.
The case was badly reported, with few journalists noting that Padilla had been detained in solitary confinement in a military brig for more than three years before being brought to trial. Media Matters also faulted the coverage.
A notable exception was the series of articles about Padilla in The Christian Science Monitor here, here and here.
Marty Lederman of Balkin Blog thought that the Padilla case offered a guide that allowed us to decode the Government’s policy on detention.
Yale law prof Jack Balkin (pic) analysed the infamous Jacoby Declaration previously used by the Government against Padilla.
Lawyer-blogger Glenn Greenwald probably had the best summary.
After the case was completed, Padilla’s lawyers from his “enemy combatant” days disclosed that they had brought a civil damages case against the US in South Carolina District Court. It’s for the torture and mistreatment that their client says he endured in the naval brig.
The other inmate there, Ali al-Marri (see below), had previously brought such a suit in 2005. Al-Marri’s claim apparently resulted in an end to illegal questioning and an improvement in detention conditions.
The new Padilla lawsuit was filed by Wiggin & Dana lawyer Jonathan Freiman for Yale Law School’s International Human Rights Clinic.
The amended petition includes as defendants Admiral Lowell Jacoby (pic) of the Jacoby Memorandum fame and Michael Mobbs, the Pentagon flunky who authored the dodgy “Mobbs Declarations”.
These second and third-hand hearsay statements were used by the Government in numerous cases for a habeas return, where the US claimed the right to hold detainees based on belief summaries without actual witness evidence.
There are many other, unnamed, defendants who worked at the brig or planned/condoned Padilla’s alleged mistreatment, e.g. medical staff, legal professionals, psychiatrists, interrogators and guards. In fact, there are John Does 1-50, in addition to the usual suspects such as disgraced former defence secretary (and universal defendant) Donald Rumsfeld, and his deputy Paul Wolfowitz.
* * *
The Ali al-Marri case (see my post of August 15) is to be reheard en banc by the 4th Circuit Court of Appeals. Whether the Government wins in the full court, the case will end up in the Supreme Court – but The Washington Post is worried.
In an ambiguous editorial, the Post has once again implied that the Dear Leader must retain his “right” to designate people in the US as Staatsfeinde – enemies of the state; or “enemy combatants” as Mr Bush prefers to call them.
The Post huffed: “This is not – or should not be – a country that simply ‘disappears’ people without hearings.” But the Court Circular seemed to suggest that, if there were some sort of hearing, disappearances would be quite OK.
That would suit retired US District Court judge Michael Mukasey. Mukasey, who heard the original Padilla case in New York, has written an op-ed in the Rupert Street Journal in which he favours national security courts where defendants receive decidedly limited rights.
* * *
Meanwhile, Mohammad Haneef’s Australian lawyers can take heart from the fact that in the US the Bush Administration has begun paying claims for illegal detentions, including this one in Washington State.
Other settlements for false arrests and detentions in the “war on terror” have been reported, including one with the Colorado lawyer Kiko Martinez, who received a settlement last month, according to The Washington Post. In a remarkably understated headline, the Post screamed, “20,000 Detentions in ‘06 Rile Critics”.
Last year the US paid $2 million to the West Coast lawyer Brandon Mayfield (pic). He was held for two weeks by the FBI after it erroneously matched his fingerprints to those found near the 2004 Madrid bombings.
Now a petitioner in Detroit is seeking $9 million damages in a suit arising from a failed terror prosecution where the case was aborted for prosecutorial misconduct.
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George Bush continues to issue astonishing executive orders including a new one on Lebanon – a place I suspect he hadn’t heard of a few years ago – using the International Emergency Economic Powers Act, as well as something called the National Emergencies Act.
The IEEPA is the Act used so successfully on John Walker Lindh.
However, the US military has warned its soldiers to ignore Bush’s order purporting to authorise unnamed “enhanced interrogations techniques” for use by the CIA, and to stick to the Field Manual when interrogating.
Scott Horton has detailed the Pentagon lawyers’ misgivings over Bush’s recent “torture” order.
I’ve been trying to think of a name for these ubiquitous Bush edicts. Many of them have the flavour of a papal anathema or imperial injunction; indeed, of a fatwa. That put me in mind of an early 20th century Americanism, bushwah, which the Oxford American Dictionary defines as “rubbish, nonsense, bullshit”.
Although it derives from bourgeois, it’s a plausible combination of Bush and fatwa: “Today, the President issued a Bushwah” has a certain ring. It could be shorthand for a curse delivered upon some unfortunate target, say the Islamic Republic of Iran, or a citizen Staatsfeind.