Tuesday, October 30, 2007

Another Military Hero?


"By all accounts, Colby Vokey is a model officer in the U.S. Marine Corps, at one point helping command an artillery unit in Kuwait during the Gulf War in 1991.
For the past four years, Vokey has served as chief of all the Corps' defense lawyers in the western United States — and he's played a key role in some of the military's most sensitive legal issues, including the murder investigation in Haditha, Iraq, and in the debate about detainees at the U.S. prison camp at Guantanamo Bay.
"Colby Vokey?" muses retired Col. Jane Siegel "Integrity almost seems like a word too small to describe him." "

From NPR's All Things Considered: (Click on the title above for the full story and/or audio)


The fact that politicians are fully willing to debate the approapriateness of torture with a straight face is a shameful chapter in our current history. If you are one of the ethically challenged, who believes that it is imperative "for our safety" that we torture purported enemies, then please read what Malcolm Nance has to say about waterboarding at www.smallwarsjournal.com...

" It has been reported that both the Army and Navy SERE school’s interrogation manuals were used to form the interrogation techniques used by the US army and the CIA for its terror suspects. What was not mentioned in most articles was that SERE was designed to show how an evil totalitarian, enemy would use torture at the slightest whim. If this is the case, then waterboarding is unquestionably being used as torture technique."

"In fact, waterboarding is just the type of torture then Lt. Commander John McCain had to endure at the hands of the North Vietnamese. As a former Master Instructor and Chief of Training at the US Navy Survival, Evasion, Resistance and Escape School (SERE) in San Diego, California I know the waterboard personally and intimately. SERE staff were required undergo the waterboard at its fullest. I was no exception. I have personally led, witnessed and supervised waterboarding of hundreds of people. "
Read the whole article by clicking on the title...

Monday, October 29, 2007


Press release



Complaint Filed Against Former Defense Secretary for Torture, Abuse at Guantánamo and Abu Ghraib

October 26, 2007, Paris, France – Today, the International Federation for Human Rights (FIDH) along with the Center for Constitutional Rights (CCR), the European Center for Constitutional and Human Rights (ECCHR), and the French League for Human Rights (LDH) filed a complaint with the Paris Prosecutor before the “Court of First Instance” (Tribunal de Grande Instance) charging former Secretary of Defense Donald Rumsfeld with ordering and authorizing torture. Rumsfeld was in Paris for a talk sponsored by Foreign Policy magazine.

The filing of this French case against Rumsfeld demonstrates that we will not rest until those U.S. officials involved in the torture program are brought to justice. Rumsfeld must understand that he has no place to hide. A torturer is an enemy of all humankind,” said CCR President Michael Ratner.



Roger Fitch Esq • October 25, 2007
Our Man in Washington
The Senate Judiciary Committee is holding confirmation hearings for retired federal judge Michael Mukasey, George Bush’s nominee for Attorney General.
Although he is likely to be confirmed by Democrats – they fear something worse if he’s rejected – Mukasey’s testimony has hardly shown him to be a civil liberties-loving independent.
Nor is he a sceptic where claims of presidential infallibility and supremacy are concerned.
There are also troubling incidents in Mukasey’s judicial career, as noted in my last post.
After the 9/11 attacks, Mukasey – the senior district judge in Manhattan – allowed the government to apply the hitherto limited grand jury “material witness” warrant to an entire class of resident aliens never before subjected to it.
This led to the notorious security sweeps of legal aliens in 2001, the worst since the Red Scare of 1917-1920.
Former Congresswoman and Nixon-nemesis Elizabeth Holtzmann has pointed out that this drama has played out once before, in 1973.
That’s when Nixon’s ethically challenged Attorney General Richard Kleindienst resigned under a cloud and was replaced by Elliot Richardson.
As a condition of his confirmation, Richardson agreed to appoint a special prosecutor to look into the misdeeds of the Nixon administration. The rest is history.
* * *
In my last post I lamented the decline in use of the 13th century Magna Carta, but there is one venerable statute dating from the year of the French Revolution, still in use in the American republic.
It’s 28 USC 1350, better know as the Alien Tort Statute or the Alien Tort Claims Act. ATCA has been on the books since the Judiciary Act of 1789.
It’s been put to use just this month, following the September 16 shoot-up by the Blackwater mercenaries in Baghdad, where many civilians were killed.
The petition was filed by the Center for Constitutional Rights in DC District Court on behalf of victims of the Nisoor Square “incident”, and it doesn’t mince words.
The Los Angeles Times has more on this.
In my last post I reported suggestions that rogue mercenaries, such as Blackwater, could be given “enemy combatant” status. Now, Bush officials are worried that contractors could indeed be treated as unlawful combatants under international agreements.
Still, Blackwater is not the most despised government contractor in Iraq. That honour belongs to the former Halliburton subsidiary KBR. The November issue of Vanity Fair reports in detail on KBR’s looting and pillaging.
* * *
Back in Guantanamo, the Pentagon is mooting new “status hearings” for all the remaining hundreds of internees – this time for the express purpose of adding “illegal” to their “enemy combatant” labels and enabling trials of the lucky few for “war crimes”.
Yet, will any administrative process of the Pentagon convert detainees into (a) combatants, and (b) illegal ones?
Under US and international law (i.e. Geneva Conventions) such a process requires an independent judicial determination before any “war crimes” trial, as the lawyers for Omar Khadr have rightly pointed out.
An amicus brief filed in Khadr’s appeal to the Court of Military Commission Review explains it very well.
Repeat Combat Status Review Tribunals would consume a lot of time, but the whole idea is to keep the detainees bailed-up and avoid a determination of their actual status until after a new president has been sworn-in.
Slate’s Dahlia Lithwick suggests the government is offering the DC Court of Appeals a “dog ate my homework” excuse for missing evidence from the first round of hearings.
* * *
In the invalid “presidential” military commissions, the Canadian Omar Khadr and the Australian David Hicks were bizarrely charged with “aiding the enemy”, even though neither owed a duty of allegiance to the US.
The Pentagon was on somewhat safer ground when charging Lt Col William Steele, a former Camp Cropper jail commandant in Iraq, with “aiding the enemy”.
Steele is a US citizen, as was the Gitmo padre Captain James Yee (pic), the only other US military officer charged with “aiding the enemy” since the advent of the “war on terror”.
Steele was the former commander of the detention facility that held Saddam Hussein after his capture. In Steele’s case (as in Yee’s, who was exonerated), the charges seemed shaky.
Providing a mobile phone to a detainee does not seem to be such an odious offence as would justify life in prison, but that was what was sought by a vengeful Pentagon.
At least charges of providing cigars to Saddam Hussein were dropped, and the Pentagon magnanimously reduced the requested penalty from death.
Even though the military prosecutor at Steele’s court-martial compared the act of lending a mobile phone to providing an AK-47, the judge acquitted Steele of aiding the enemy and sentenced him to a mere two years on other charges.
* * *
Col. Steele was accused of being “too sympathetic” to detainees. Similar accusations were made about Navy Commander Matthew Diaz (pic).
In May Diaz got jail time for passing a list of Gitmo detainees to the Center for Constitutional Rights. The New York Times has now published a long piece on this whistleblower, who is doing six-months in a US Navy brig.
The article on Diaz reminded us of the events of 2004.
In June the Supreme Court made clear, in the Rasul (Hicks) case, that Guantanamo detainees were entitled to habeas hearings in Washington district courts.
Yet the Bush administration, in an unprecedented flouting of a Supreme Court decision, stonewalled every effort to provide the hearings while Diaz was deputy legal adviser at Guantanamo.
The Pentagon refused to even disclose who was held in Guantanamo, and continued refusing until ordered to hand over the names by a federal court in 2006.
That non-disclosure made it difficult for lawyers to file suits or for families of the detainees to learn of their detention and seek lawyers to represent them.
It was against this background that the Gitmo lawyer Diaz decided to risk his career by anonymously providing to CCR (lead counsel for petitioners) the names and numbers of the detainees.
Fast forward to 2007 and things have hardly improved. However, an unlikely new whistleblower has come forward.
Now that he has left his job (see my post of October 10), former Guantanamo chief “war crimes” prosecutor Col. Moe Davis (pic), is singing about the interference in prosecutions by a highly politicised Pentagon.
According to news reports, the Pentagon is also fretting that the “alleged” torture and mistreatment which produced the “evidence” will queer the cases against “high value” detainees in Gitmo.
Bit late for that now, surely?
* * *
In a further moment of deja vu, military commissions are set to begin again. The first two cases (November 8 and 9) will be those of Omar Khadr and the long-suffering motor pool driver Salim Hamdan of Supreme Court fame.
Despite the best efforts of lawyers and unsung patriots such as Cmdr. Diaz, the opportunity of Omar Khadr to demonstrate that he is not an “unlawful combatant” (and therefore cannot be tried by a military commission) has been obstructed successfully by the government for over five years.
Scotusblog reports the latest twists.
Not surprisingly, Khadr’s pending military appeal to the DC Court of Appeals from the Court of Military Commission Review didn’t stop the military commission judge, Col. Peter Brownback, from scheduling a repeat military commission.
As Gabor Rona of Human Rights First has noted, the charges against Khadr are not even war crimes. While it may be a war crime to kill a civilian, in Khadr’s case the person killed was a combatant, i.e. an American soldier.
The same question is raised by the charges in a new military commission filed against Mohammad Jawad. Another underage combatant, he too allegedly lobbed a grenade, injuring military personnel and their interpreter.
The Los Angeles Times has more.
* * *
Have you ever wondered how the Supreme Court decides which cases to hear?
Would you believe that, except for Justice Stevens, the choice is made by wet-behind-the-ears law clerks? Howard Bashman tells how it works.
Perhaps this helps explain the Supreme Court’s failure to grant certiorari in one of the most momentous petitions to the court this term: the civil damages case brought by the German citizen Khaled El-Masri for his torture-abduction – sorry, “extraordinary rendition” – by CIA agents.
Aziz Huq of NYU Law School’s Brennan Center has more.
The case is hardly a secret: the sites of detention are known, the flight logs have been confirmed, Condoleeza Rice has apologised to the German Chancellor and a German prosecutor has brought charges against CIA agents.
Nevertheless, the case was dismissed in district court and the dismissal was upheld in the Bush-friendly 4th Circuit, due to “state secrets”.
The “State Secrets” Doctrine is a killer application, created by the Supreme Court in 1953 and apparently borrowed from English law.
Originally it was intended only to protect evidence. Under the Bush administration it has been used to dismiss entire lawsuits out of hand without any evidence ever being offered, purely on the unsupported claim of the government, whether in good faith or bad, that “national security” is threatened.
Scotusblog has more.
There is another case, however, that should present a second chance to consider the State Secrets doctrine.
You may recall the case of Maher Arar, a Canadian who was changing planes in New York in 2002 when he was grabbed by ICE (US Customs and Immigration), and sent to Syria for torture.
Mr Arar has now testified before the House Foreign Affairs Committee which is investigating his ordeal.
He gave evidence by video link, not because he’s afraid to visit the US, but because ICE still refuses him a visa.
The Democrats seemed unperturbed that the Bush administration obstructed their investigation by denying him a visa, and this after the Canadians had exonerated him, paid him $10 million in damages and apologised.
Arar will never get any damages, let alone apologies, from the Bush administration.
At least Mr Arar wasn’t sent to the rumoured Anglo-American prison on Diego Garcia Island, now being investigated by the British parliament for the CIA’s likely use there of (shudder) verschaerfte Vernehmung – enhanced interrogation.

Wednesday, October 24, 2007


Amnesty International has sent out the following worldwide URGENT request... Please contact the individuals listed at the bottom of the alert and help me to get desperately needed medical attention to Mr. Al-Ghizzawi now.... and please ask everyone you know to do the same...
Best regards.

PUBLIC AI Index: AMR 51/164/2007
24 October 2007
UA 275/07 Health concern/Unlawful detention

USA (Guantánamo)
Abdul Hamid al-Ghizzawi (m), Libyan national

Guantánamo detainee Abdul Hamid al-Ghizzawi has been diagnosed with hepatitis B and tuberculosis. Amnesty International fears that he may not have access to appropriate medical care to treat his illnesses.

Abdul Hamid al-Ghizzawi has told his lawyer that his health began to worsen during his first year of detention at Guantánamo and has steadily deteriorated over the five years of his detention. He learnt in September 2006 that doctors at the Guantánamo hospital had earlier diagnosed him with hepatitis B and tuberculosis.

After visiting Abdul Hamid al-Ghizzawi in May 2007, his lawyer described the condition of his health as “…alarming. His face was drawn and his skin looked both ashen and jaundiced. He had a difficult time focussing on anything…He was in constant visible pain…He was very weak and tired…[he] told me he could not walk more that a few feet before being overcome with fatigue.” His lawyer most recently visited him in September 2007 and she has stated that he could barely walk and during the meeting was doubled over with pain. She has expressed fears for his life.

Amnesty International fears that Abdul Hamid al-Ghizzawi may not be receiving appropriate medical treatment. The Commander of the Guantánamo hospital and Joint-Task Force surgeon has previously stated that Abdul Hamid al-Ghizzawi does not want to be treated for his illnesses. However his lawyers have asserted that neither he nor they were informed of the diagnosis until September 2006 and that he has since requested treatment but has received none.

Abdul Hamid al-Ghizzawi was transferred to Guantánamo’s Camp 6 in December 2006. At Camp 6, the harshest of the detention facilities at Guantánamo, detainees are confined in conditions of extreme isolation and sensory deprivation for a minimum of 22 hours a day in individual steel cells with no windows to the outside. Amnesty International is concerned that conditions in Camp 6 could have a serious adverse effect on the psychological and physical health of the detainees held there, exacerbating the stress inherent in their indefinite detention without trial or access to their families. In February 2007, during her first visit to Guantánamo since Abdul Hamid al-Ghizzawi had been transferred to Camp 6, his lawyer stated that he “…was stooping low to the floor and huddled against the wall when I entered. His arms were wrapped around his body as he tried to warm himself from the chill he has had for over two months, and his feet were shackled to the floor. He was shivering, his teeth were clenched and he would not look at me.” During the visit he also stated that he was vomiting several times a day, had frequent headaches, itchy skin, pain in his back, abdomen, frequent nosebleeds and pain in his gums. The extreme isolation, punishment regime and other harsh conditions in Camp 6 are also reported to have had a severely adverse affect on his psychological health. He is reported to have begun talking to himself and has difficulty focussing or concentrating in conversation with his lawyer.

In November 2004, a Combatant Status Review Tribunal (CSRT) panel determined unanimously that Abdul Hamid al-Ghizzawi was not an ‘enemy combatant’ due to “the paucity and weakness of the information provided”. However, a second panel, convened just two months later without the detainee’s presence or knowledge, concluded that he was an ‘enemy combatant’.

Abdul Hamid al-Ghizzawi was 39 years old when he was captured in Afghanistan by the Northern Alliance forces towards the end of 2001. He was sold to US forces and later transferred to Guantánamo via US-run detention centres in Afghanistan. He had been living in Afghanistan since 1989 and is married to an Afghan woman. His daughter, now nearly six years old, was only six months old at the time of his capture.

Approximately 330 detainees from over 30 countries remain detained without trial in Guantánamo. The majority of them are held in conditions of isolation in Camps 5, 6 and Camp Echo. Camp 6 was built to house 178 detainees. It is surrounded by high concrete walls. Contrary to international standards, the cells have no access to natural light or air, and are lit by fluorescent lighting which is on 24 hours a day and controlled by guards. The lighting is reportedly dimmed at night, although it is unclear by how much. The only source of air in the cells is from air-conditioning controlled by guards. Detainees are also subjected to “loss of privileges” punishment where basic provisions such as thermal shirts can be taken away as punishment. The lack of human contact in Camp 6 appears to be reinforced by other operating procedures. The cell doors are operated by remote control, and guards escorting the detainees to and from the exercise yard wear thick gloves. There is an opening in the door through which food is slotted so that detainees rarely come into direct contact with another human being. Guards are reportedly silent during most of their contact with detainees. Detainees are also escorted in shackles whenever they leave their cells. For further information, see USA: Cruel and inhuman: conditions of isolation for detainees at Guantánamo Bay, April 2007, http://web.amnesty.org/library/index/engAMR510512007.

There is a significant body of evidence in the USA and elsewhere that prolonged isolation can cause serious psychological and physical harm, particularly if accompanied by other deprivations such as conditions of reduced sensory stimulation, enforced idleness and confinement to an enclosed space.

RECOMMENDED ACTION: Please send appeals to arrive as quickly as possible, in English or your own language:
- expressing your serious concern that Abdul Hamid al-Ghizzawi may not be receiving appropriate medical care for his illnesses;
- urging that Abdul Hamid al-Ghizzawi be given immediate access to a doctor, and to specialist medical attention if necessary as stipulated in the Standard Minimum Rules for the Treatment of Prisoners, 22 (2), so that he can be properly diagnosed and provided with all the necessary treatment he may require;
- urging that independent medical experts be allowed to visit him regularly in Guantánamo to assess his medical condition and treatment requirements;
- urging that he be removed from Camp 6 immediately and transferred to facilities which will not be further detrimental to his physical and psychological health;
- stating that he should be allowed contact with his family through regular mail, with opportunities for phone calls and visits;
- calling for the detention facility at Guantánamo Bay to be closed and for the detainees held there to be released unless they are to be promptly charged with recognizable criminal offences and brought to trial in ordinary civilian courts in full accordance with international standards, without recourse to the death penalty

Rear Adm. Mark H. Buzby, Commander Joint Task Force Guantánamo
Department of Defense , Joint Task Force Guantánamo, Guantánamo Bay, Cuba, APO AE 09360
Fax: +1 305 437 1241
Salutation: Dear Rear Admiral

J. Alan Liotta, Principal Director, Office of Detainee Affairs
Office of the Assistant Secretary of Defense, 2900 Defense Pentagon, Washington DC 20301-2900, USA
Email via: http://www.defenselink.mil/faq/comment.html
Salutation: Dear Director

Member of US Congress
Rep. Jan Schakowsky, 1027 Longworth House Office Building, Washington, DC 20515, USA
Fax: + 1 202 226 6890

and to diplomatic representatives of USA accredited to your country.
PLEASE SEND APPEALS IMMEDIATELY. Check with the International Secretariat, or your section office, if sending appeals after 5 December 2007.


I reported on October 1st that Mr. Al-Ghizzawi's Original petition for Habeas Corpus made it past the first hurdle when the Court allowed the petition to be filed. On that same day thousands of petitions (from all areas of the law) that had been filed over the course of the summer were dismissed. A few days later an order showed up on the docket sheet ordering the government to file a response by October 31st. It turned out that was a docketing error and Mr. Al-Ghizzawi's petition was instead set for a conference date of October 26th. The conference date is when the Court is all together and reviews petitions to see which, if any, interest enough of the members of the Court to go to the next step.... Today on the docket sheet an order was entered ordering the Solicitor General to respond to Mr. Al-Ghizzawi's case by November 23rd.
This was the best outcome possible at this time...My only hope is that Mr. Al-Ghizzawi can stay alive long enough to see what happens.

(you can monitor the progress of his petition yourself by clicking on the title above. The link will take you directly to the Docket sheet for Mr. Al-Ghizzawi's petition... )

Monday, October 22, 2007

The sad story of Guantánamo’s Uyghurs: stranded in Albania

Check out Andy Worthington's update on the Uyghurs....(click on the title) the Chinese Muslims from the Xingxiang province of China. They escaped from China to Afghanistan, were turned over to the U.S. forces for bounty, and held in Guantanamo for years while American officials tried to figure out where to place these innocent men. Settling them in the U.S. would mean admitting we made a mistake so we sent them to the only friend we could convince to take them.... Albania.
As one of the men points out, they are no longer inprisoned but they are still without their families, homes and work.

Thursday, October 18, 2007

Suicide and Spin Doctors

This is the article I wrote for "In These Times" that caused McCarthy to spin his latest tale... (click on the title...) One day the truth will come out about this too McCarthy.


When the young Saudi Detainee Abdel Rahman Al Amri died in May of this year, the government claimed it was an "apparent suicide". My client Mr. Al-Ghizzawi claimed it was medical neglect and that Mr. Amri died from untreated hepatitis B and TB. Captain McCarthy, the man who holds himself up as the top military lawyer at the base is now claiming that Mr. Amri hung himself with some string like stuff and that he saw the body. So who do you believe?
I will give you a hint.
Everything Mr. Al-Ghizzawi has ever told me has been backed up by the governments own records.
Captain McCarthy on the other hand does not have such a stellar record. On my first visit to the base the military screwed up and did not allow me to visit one of my clients. It became apparent that this was not just a mistake but that it was intentional....so I filed what is called a "rule to show cause" asking the judge to hold the military in contempt of court (I had a court order to see that second client). Captain McCarthy (a man I have never met) prepared a long affidavit explaining that the reason that I did not get to see my client was my own fault. He made up a bunch of lies, some just plain silly, others more nefarious.... I asked the judge to strike McCarthy's affidavit because it was not based on any of his own personal knowledge. The judge refused to strike the affidavit but instead said that he would determine how much weight to give McCarthy's affidavit... after hearing the testimony he gave McCarthy's affidavit ZERO weight.... in non legal terms that would be like saying "McCarthy you are a liar."
So back to my question above? Who do you believe?
I say McCarthy is covering up for the medical neglect at Guantanamo just like he tried to cover up for the intentional interference of my visit with my client. I say that anything that McCarthy says should be given the same weight it was given by the good Judge....ZERO weight.
Click on the title above to read the story from the Miami Herald.

Wednesday, October 17, 2007

Mr. Al-Ghizzawi's latest secret

Mr. Al-Ghizzawi is close to death and he shared a few things with me that he wanted the world to know about his illegal and immoral inprisonment.... the government has classified 3 of his 6 page letter "secret" so that you won't know what he was subjected to. I wrote about this on huffington today. Click on the title and it will take you to my post.

Tuesday, October 16, 2007


With Moe and Cully out of the picture I have been holding my breath waiting for a "Larry". Today the military answered my call... naming Army Col. Lawrence J. ''Larry'' Morris the new prosecuting attorney for the military tribunals...
(click on the title above for the full story...

Monday, October 15, 2007

Truitt and Carpenter interviewed on The Talking Dog

Steve Truitt and Charlie Carpenter are the latest habeas counsel to be interviewed by the talking dog (click on the title above and maybe you will go directly to the interview). Perhaps it is just me but my favorite part of the talking dog interviews is reading about the interactions between the various habeas counsel and their clients. I especially like the fact that one of Steve and Charlie's clients realizes the folly of the legal procedures on his behalf... but he is still happy for the company of these great lawyers and is grateful for the efforts on his behalf....
The legal procedures are of course a joke (a sad one at that)... but it is not because of the hard work of the many courageous attorneys who have taken on these cases.... it is because the circuit court and the district court judges are completely unable (or unwilling) to do their job.
Shame on those judges.... They took the same oath we lawyers took... "support and defend the Constitution of the United States against all enemies, foreign and domestic".

Sunday, October 14, 2007


Yes, a new twist to "my dog ate my homework." In a recent court filing the government kind of admitted that it really didn't keep alot of the paperwork after it rushed into tribunals in 2004 to determine whether or not the detainees were "enemy combatants"..... now that they have been ordered to turn everything over .... well ok, not everything... but some things over to habeas counsel the government has been scrambling... and well we know how the courts hate to see the government break into a sweat so... the DC Circuit suggested to the government that maybe they should just conduct these tribunals again if they can't figure out which documents were actually generated the first time around...... hey great idea.... My client Mr. Al-GHizzawi who has been imprisoned for almost six years now has already had two tribunals... the first finding him NOT TO BE AN ENEMY COMBATANT.... the second hastily throw together to overturn the first... so why not wait another three years and do it all again. Maybe they can do the third one on the anniversary of his first.... November 23rd... oh wait, that is thanksgiving weekend isn't it.... and what is it exactly that we are thankful for this year?
Everytime we think it can't get much worse.... it does...

Wednesday, October 10, 2007

Gonzales' lawyer, Gonzales' worry

I love to see Gonzales worry: so read this post from salon (click on title).
But let me tell you this...
if I and a many others get our way...
this will be one of the smaller worries for gonzo...
War Crimes,
violating the Geneva Convention and other treaties,
A fist full of lies to Congress,
the American people
not to mention the rest of the World.

And Gonzo.... remember when it comes to the law...
ignorance is not bliss.
(did they teach you that at law school?)

From Roger Fitch and our friends down under...once again.

(click on the title to go directly to "Justinian"

Roger Fitch Esq • October 10, 2007

Our Man in Washington

October 1 marked the beginning of the new Supreme Court term.

The National Law Journal has a report on important cases for the new term, including the Guantanamo detainee case, Boumediene-Al Odah, which will test the suspension of habeas contained in the Military Commissions Act 2006.

The military commission case, Hamdan, would have made a natural companion case to the detainee case, as both require the court to construe the MCA. It was refused certiorari, however, on the basis that Hamdan’s appeal had not yet been decided by the DC Circuit.

In a Catch 22 for Mr Hamdan, the Court of Appeals has deferred consideration of his case until the Supreme Court decides Boumediene.

According to a not entirely disinterested analysis, the new conservative bloc of the Supreme Court is ready to “implement a bold, longstanding plan for radically remaking the court’s jurisprudence”.

One of the major cases – a late addition to the court’s docket – concerns capital punishment, e.g. the constitutional validity of the method of lethal injection.

This issue – whether the protocol for administration of drugs in fact paralyses the person executed while allowing excruciating pain – has caused many states to suspend such executions. It’s no trivial question, as Texas and many other states ban the use of one of the challenged medications in putting down animals.

Texas, the leading capital punisher, refused at first to suspend executions, but finally relented at the beginning of October.

Unfortunately, it was too late to save one man. A fatal crash of computers is said to have cost the life of a Texan inmate, who failed to meet an appeal deadline days before Texas acted to suspend executions.

* * *

In the meantime, the Bush Administration has had two big losses in US District Courts.

In one case, a federal judge ruled that the US National Archives could not refuse FoI requests relying on a Presidential Records Act order of George W. Bush.

The order famously claimed the right to prevent disclosure of presidential records for new and spurious reasons and placed consent for release in the hands of the presidents or their descendants. One of the plaintiffs, the National Security Archive, has more on this.

In the other case, West Coast lawyer Brandon Mayfield, who had already obtained $2 million and an apology from the Bush Administration for illegal detention (he was falsely accused of participating in the Madrid train bombing on the basis of a botched fingerprint match), won the remainder of his action in a decision striking down part of the seriously misnamed USA Patriot Act. The New York Times has more to say about this.

* * *

The disasters of the US mercenary firm (sorry, security contractor) Blackwater, which “protects” US officials in Iraq, are back before a Congressional committee.

The initial report of the House Committee makes unedifying reading, even without the details of a September 16 shootout in which as many as 28 innocent civilians were killed by Blackwater – an apparently unprovoked incident in which no one else fired a shot.

US contractors in Iraq can claim exemption from Iraqi law on the basis of the infamous “Order 17” made by the proconsul Paul Bremer just before he departed Iraq.

Blackwater claims to be exempt even from US oversight in Iraq because it contracts with the State Department rather than the Defence Department. The US legislation, such as it is, pertains to military support contractors.

In the unfolding farce, the State Department first interfered to protect the mercenaries from investigation.

The State Department’s Inspector General was accused of intimidating potential House Oversight Committee witnesses – one reason for proposed new legislation that would strip the President of the power to sack truly independent Inspector Generals.

Then, when the State Department reluctantly provided a “report” on the latest Blackwater “incident”, it turned out that the report had been outsourced to a Blackwater official.

Finally, the swashbuckling Erik Prince, Blackwater’s deeply rich, fundamentalist and Republican owner, testified before the House Committee. His testimony itself was contemptuous of Congress, as Sidney Blumenthal reports in Salon.

As the TimesMaureen Dowd commented: “Once there was the military-industrial complex. Now we have the mercenary-evangelical complex.”

In any event, there is now going to be a proper FBI investigation of the Blackwater “incident”, although the FBI understandably declined the State Department’s offer to have its agents protected by Blackwater.

The State Department has agreed to begin oversight of Blackwater – after $1 billion in US contracts, and there is to be new legislation (now passed by the House) making all contractors in Iraq subject to US criminal law.

Perhaps a better idea is that of legal ethicist David Luban, who thought that military commissions might be profitably used against rogue military contractors.

Law prof Laura Dickinson (pic) also had some interesting thoughts on the same subject.

* * *

Speaking of military commissions, the Government’s appeal of the dismissal of the Omar Khadr commission has been decided.

The Court of Military Commission Review has partly saved the Government from the effect of its incompetence, although it was hardly the mighty victory for the Bush regime that it was portrayed to be in the press.

Scotus blog has more on the Khadr case.

Sadly, when the MCs of Khadr and Hamdan (also affected by the CMCR decision) resume, colourful Chief Prosecutor “Moe” Davis will be gone.

After an apparent losing struggle with Brig Gen Thomas Hartmann, whom he accused of interference, Colonel Davis has asked to be transferred.

Davis wasn’t the only spoke in the wheel for the Pentagon. Another whistleblowing member of the dodgy Combat Status Review Tribunals has come forward, echoing the earlier complaints of Col. Stephen Abraham that had much to do with the Supreme Court changing course and granting certiorari in Boumediene.

Like Col. Abraham, the officer, as yet unidentified, had participated in a CSRT where a “redo” was ordered by the Pentagon after the panel failed to find that the detainee was an “enemy combatant”. The officer’s statement is part of a declaration filed by the lawyers for Adel Hamad, a hospital administrator seized in Pakistan and sent to Guantanamo.

Unlike Col. Abraham, the latest Pentagon defector participated in not one but 49 CSRTs. Hamad’s CSRT was but one of six the officer participated in where repeat panels were demanded by the Pentagon.

Meanwhile, the Department of Defence proudly announced that last year’s new arrivals at Gitmo, the “high value” detainees, were to be offered the right to request lawyers, to be provided by the American Bar Association.

The ABA immediately contradicted the DoD, declining to have anything to do with a Guantanamo process that had no habeas corpus.

The ABA said its offer had been made two years ago in the wake of the Rasul case, after the right to habeas had been confirmed by the Supreme Court and before Congress took it away.

Apparently, the DoD kept the ABA’s offer secret for two years and then tried to extend it selectively to the “high value” detainees – not yet detained in Gitmo in 2005 – and only for their representation before the Detainee Treatment Act appeals in the DC Court of Appeals.

* * *

A persistent problem in the Guantanamo (and now Bagram, Afghanistan) detainee cases has been the Government’s zeal to send released prisoners to countries where they may be tortured or arbitrarily detained, always without telling their lawyers or the courts beforehand.

Many such attempts by the Administration were stayed in the various habeas cases, but since February 2007 when the DC Court of Appeals (in its 2-1 Boumediene decision) interpreted the Military Commission Act to block all habeas case motions, the danger to detainees has become especially grave.

Now, the Centre for Constitutional Rights in New York has filed a petition for certiorari in the Supreme Court on behalf of a Libyan held in Guantanamo, whose refoulement/forced repatriation they seek to block.

CCR earlier condemned a recent decision of Judge Richard Urbina, who dismissed 16 cases involving 40 detainees despite the pending appeal of the Boumediene-Al Odah cases in the Supreme Court this term.

A day after Urbina’s ruling, the DoJ informed all the affected lawyers that they were barred access to their clients, but after the lawyers appealed Urbina reinstated the cases.

Other DC judges had taken a different course. In July, Judge John Bates refused to dismiss the habeas case of a Yemeni, Al-Maqaleh, who alleged he was unlawfully detained by the US at its Bagram Air Base in Afghanistan. Judge Bates did so notwithstanding the MCA purporting to close down all habeas actions for “enemy combatant” aliens held by the US in Guantanamo and overseas.

In another Bagram case, DC Judge Gladys Kessler required notice to the court of any proposed transfer, acting on the basis of the Boumediene appeal. She cited evidence that the detainee Robullah “would face a serious threat of torture” in the Afghanistan-operated wing of the US prison in Kabul, Pul-i-Charki, where the US seems determined to transfer him.

Kessler and Bates have joined Judge Ellen Huvelle (pic) of the DC bench in declining to dismiss cases for the Government pending the Boumediene appeal.

If memory serves, even Richard Leon, the judge in the Boumediene case and a slavish supporter of Bush Law, has declined to dismiss cases pending the appeal.

Unfortunately for some petitioners, many cases, including those of Reggie Walton, were dismissed before the Supreme Court granted certiorari in the Boumediene case.

* * *

In a final irony, the last surviving 13th century copy of the Magna Carta in private hands has come on the market.

There are only two copies outside England – in Australia and the US. This copy is the one on display in the National Archives in Washington, where it has been on a long-term loan from its owner, Texan billionaire Ross Perot.

And why not sell it? It doesn’t look as though there will be much call for it in future – in either Texas or Washington.

Monday, October 8, 2007

The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison

Andy Worthington's long awaited book is out now. You have read on these pages the saga of Mr. Al-Ghizzawi and a little bit about Mr. Razak Ali but if you want to know the sad truth about the hundreds of men held at our own little torture chamber you must read this book.
I was honored to be asked to preread Andy's book... You can read an interview with Andy at The talking Dog (http://thetalkingdog.com/archives2/000920.html) and here is what I wrote to Andy in July after I finished the book:

Dear Andy,

I just finished reading “The Guantánamo Files” on the heels of my latest trip to the base. What an amazing feat this book of yours! I must say that the base seemed even more surreal and cruel with the added knowledge that your book armed me with. As I was leaving Guantánamo Wednesday night, leaving behind the 385 remaining men, I couldn’t help but wonder how, or if, my country will survive this atrocity .

“The Guantánamo Files” is a must read for anyone who wants to understand how Guantánamo came to be the U.S.'s torture chamber. The book is a comprehensive and well researched exposé of Guantánamo that pulls together not only the history that brought us to this hell-hole, but an extraordinary look at the stories behind the many tragic men and boys who were picked up in the vast sweeps of Arabs around the world following 9/11 by, or at the direction of, the U.S. government.... As you point out in your book most of these men are guilty of nothing more than being Arab at a time when the U.S. paid high bounties for Arab’s without asking any questions. Now these many innocent men have been silently limping out of Guantánamo in the dark of night ... a few at a time so as to bring as little attention as possible to this criminal tragedy by the sleeping American public, who seem remarkably uninterested in the war crimes being perpetrated in their name.

Your book also demonstrates so clearly the frightening and unchecked power of the Bush administration and the ultimate failures that have followed from the administration's miserable, inept and criminal policies... you convincingly show how the mishaps, misinformation, intelligence failures, lack of trained translators and sheer incompetence led to a national criminal tragedy that continues to this day. Perhaps personally most disturbing was your unraveling of the U.S. government’s manipulation of classified information, not to protect national security, but in a vein attempt to hide the truth about Guantánamo. The fact that the real story behind Guantánamo has been ignored by our corporate media, politicians on both sides of the aisle and most distressingly by the judiciary, makes your book an important historical contribution to this dark period… and if the U.S. happens to survive this episode of cruelty and lawlessness your book will be an important tool for coming to grips with how we as a nation allowed indefinite detention without charge, extraordinary rendition and torture to become national policies.

Thank you for what was obviously a tremendous and complicated effort in gathering the information for this extraordinary book. “The Guantánamo Files” pulls together the catastrophe at Guantánamo by focusing on both the many men who have and continue to suffer needlessly and the criminals in control of the government of the United States. I wait for the day that my own innocent clients are finally freed. I hope that they leave with their lives but thanks to your book I know they will not leave silently.

Afghani "Terrorists" Executed

Yesterday the Afghani government executed 15 men being held at the infamous Policharki prison of death in Kabul. Although part of that prison is controlled by the Afghani's there is a wing of that prison that is under the complete control of the U.S. Military.... referred to as the "VIP wing". We don't know whether any of the men that were recently transferred from Guantanamo to Afghanistan are included in the list below.... but many of us are concerned that the U.S. Government/military is using the VIP wing as a way to avoid the guantanamo litigation.

>1. Abdul Wakil S/o Mohd Akbar from Laghaman province by the name of
>2, Dost Mohd S/o Nazar Mohd from Nooristan Province by the name of terrorist
>3, Mohd Husain S/o Mohd Haneef from Farah province by the name of terrorist
>4, Ahmad Shah S/o Noor Mohd from Kandahar by the name of terrorist
>5, Raza Khan S/o Easa Khan from Kabul province by the name of terrorist
>6, Farhad S/o Gul Mohd from Nangarhar province by the name of terrorist
>7, Mirza Khan S/o Abdul Salam from Kunar province by the name of terrorist
>8, Mohd Iqbal S/o Iqbal from Logar province criminal (killer)
>9, Rahmatullah S/o Bahaudin from Nangarhar Province criminal (killer)
>10, Inayatullah S/o Bahaudin from Nangahar province criminal (killer)
>11, Mangal S/o Mali Khan from khost province criminal (killer)
>12, Samaiullah S/o Mohd Azeem from Kunar province criminal
>13, Mirwis S/o Ghulam Jan from Nangarhar province criminal
>14, Zarawar S/o Abdul Majeed from Kabul province criminal
>15, Shad Mohd S/o Din Mohd from Kabul province crimnal

Friday, October 5, 2007

No Conscience? No Constitutional violation

Well now we know Stephen Bradbury’s opinion on the sound of a tree falling in the woods when no one is there to hear it. There is no sound. In case you are not familiar with Mr. Bradbury he is the smarter version of Alberto Gonzalez… and he headed the Office of Legal Counsel at the (lack of) Justice department. If you read the New York Times story yesterday (you can click on the title above and it will take you there…) we finally find out how the Justice department justified torture as legal. You see the Supreme Court has held that conduct that shocks the conscience is unconstitutional…. But what happens if you have no conscience? You got it… according to Bradbury waterboarding, freezing temperatures, beatings, etc didn’t shock his conscience so therefore the supreme court would find it constitutional. Did I say that he was the smarter version of Gonzales?

Thursday, October 4, 2007

The DC Circuit Court

Under the Category of "what are they thinking?" comes yesterdays decision from the DC Appellate Court in Bismullah v. Gates....

Most recently the government argued that “the dog ate the homework” and today the DC Circuit decided to duck and run by accepting that argument….they ruled that the Department of defense should just reconvene the Combat Status Review Tribunal (CSRT) in every case where the government failed to maintain sufficient records to justify the initial tribunal that found a detainee an enemy combatant…(In Mr. Al-Ghizzawi’s case “tribunalS) In essence the court was begging the Defense department to “please conduct new CSRT’s” so that the court does not have to deal with the fact that the defense department has no records to support its initial findings…

How long will this new process take – another year? Maybe two…. Depends on how quickly the Defense department can concoct new records….Then I guess we can all file new petitions and maybe the court can review those a year or two from now. I guess what this really means is that we will have a never-ending circle of do-overs (Mr. Al-Ghizzawi and 30+ other detainees have already had one do-over... and at least one detainee has already had two do-overs) with no opportunity for the court to engage in any meaningful review – and what is “meaningful,” a ruling where the government might actually be ordered to release someone it is illegally detaining.

In my Original Habeas Corpus petition before the Supreme Court (which the Court is considering right now) I asked that Court to take Mr. Al-Ghizzawi’s case because the lower courts cannot figure out how habeas works. What is happening in the courts is more than sad… men are dying while the lower courts fumble around… afraid to challenge the executive branch. The question the lower courts face is whether to follow the Constitution or follow congress…. When I went to school there was no question that the Constitution was the law of the land… but, as they say, that was yesterday…. And yesterday’s gone.

Oh and by the way the new nominee for Attorney General just gave special recognition to the attorneys in the office who have been handling the Guantanamo litigation.... good job boys and girls... you have followed the party line and have done your part to shred the constitution....

Don’t kid yourselves that things are getting better…. It gets worse just about every day.

Wednesday, October 3, 2007


It is not just the military who is wondering how the skivies landed on a detainee in the isolation cell .... and it is not just the detainees who write poetry...
our very own habeas attorney Sabin Willett has entered the drama with his own questions and came up with this masterpiece...
(now if we can only get it set to music...)

Briefly Noted
By P. Sabin Willett

The Corpsmen wonder
What’s he got under?
And so they file a brief report.
Whereat the starch of camo rustles
-- Here strides he of massive muscles! --
Glowering, full of quick retort.
Loudly then the Sarge responds
“For Clive Stafford -- Double Wands!
None penetrates my sally port!”
“Aye aye, Sir!” says Corpsman wander
Stroking wand as ‘gain to ponder
(crouching ‘neath Clive’s legs asunder)
What’s this fearful Brit got under?

Away at JAGville, colonel’s striding,
One thought tormenting, one thought riding --
(Certain as he is, well knowing, knowing --
Clive’s got something, and it’s not showing!)
His mind aburn, afire, consumed
And so paces. Stops. (Pace resumed.)
Stride -- Stop -- Turn -- and stride again. Pace --He
Yet never can evade the thought. Is it lacy?

In his oaken keep the SG broods
No sense of confidence exudes.
“Daily he assaults our core beliefs
To Justice deals so many griefs!
That hugger mugger terr’ist-hugger
With his hugger-mugger briefs!”

So ruminating calls staff to brief him
“What mighty force, what untold vim,”
Demands he of the underlings,
“Lurks in Stafford’s underthings?
(None knows. Yet fear’s asowing --
The wretched Scotus granted cert
The wretched Kessler’s on alert
Is it -- this fell unknown -- is it growing?)

All quiet then. SG cries out
To staffers in that dark redoubt,
“It’s only safety that I seek
For all from all our desperate foes!
I need a clue, a hint, a little peek --
I need intel on the underclothes!”

And now its on the ‘serv and in the papers
Food for thinkers and for gapers
The question rages (all must know yet no-one knowing)
Clive’s got something, and it’s not showing!
And so we daily, nightly wonder
What’s Clive Stafford Smith got under?

Monday, October 1, 2007

Original Habeas Petition (UPDATED)

As I announced earlier the Supreme Court today accepted Mr. Al-Ghizzawi's original Habeas Petition (click on the title of the blog to see it)... The next step is for the court to decide if it will hear the petition..it is a two step process.... It was disappointing that they would not expedite the review of his case but it is hopeful that they will hear it.

Today (October 2nd) the Court ordered the government to respond to Mr. Al-Ghizzawi's Petition... they have until October 31st... this takes us one step closer to a hearing...


Just when I was ready to throw my law license in the garbage it seems I will be needing it.....

The Supreme Court accepted Mr. Al-Ghizzawi's Original Habeas today.....
I wonder if he will live to see the end result of all of this.


The Department of Defense announced Sunday the transfer of eight detainees from Guantanamo Bay, Cuba. Six detainees were transferred to Afghanistan, and one each to Libya and Yemen.

DoJ has confirmed that the Yemeni man is Fordham's client, Ali Mohammed Nasser Mohammed (known to DoD as Ali Al Kazmi, ISN 172 and that the Libyan was ISN 557, represented by CCR and Kevin Boris.

Two of the Afghani’s are Muhibullah 974 and Sabar Lal (ISN 801)

We are still waiting for the confirmation of the other afghani prisoners.

After I get that information I will try to figure out how many were actually on the list to be released.... I believe that unlike the last two groups of released detainees at least two were on the list (ISN 172 and 557).