Thursday, February 21, 2008


(I have had requests for a fax number for the judge so that letters can be more timely... as that number is in the public domain I have added it at the end of this post...)

Many of you have asked me for an update after that horrible news that Al-Ghizzawi was told by a doctor at the base that he has AIDS. I had a Reply due today in the District Court in DC and I have spent the week focusing on that document. It is now filed and I am waiting for "clearance" by the government before I can post it.
Immediately after I received Al-Ghizzawi's letter I sent an email to the government attorney who refused to tell me whether or not the report was correct. I filed with the Supreme Court but Chief Justice Roberts denied my emergency motion... I still had no word from the Government on the AIDS report... I filed back in the District Court (where this battle for medical treatment began more than 18 months ago). District Court Judge Bates ordered the government to respond by February 15th and asked them to update the Court on Al-Ghizzawi's medical condition. Finally in a typically snide response the government admitted that Al-Ghizzawi does not in fact have AIDS (the fact that the governmen waited this long to admit the truth...if it is the truth... only convinces me that this was a psychological game being played on Al-Ghizzawi... ) but anyway if it is true the good news is that Al-Ghizzawi does not have AIDS.
I say "if it is true" because what came out in the governments response is the fact that they have admitted in this same response that they have known for 18 months that Al-Ghizzawi's liver condition (from hepatitis B) is worsening... perhaps dramatically (they will never say anything directly) and they have not treated him... The affidavit makes clear that the medical staff at guantanamo does not have a clue how to diagnose or treat hepatitis and liver damage.... at the cost of Al-Ghizzawi's health.
Soon I will be able to post my response and even though much of it is legalize and many of you are not lawyers.... you can figure it out.
And now it is time for Judge Bates to understand that many people are concerned with Al-Ghizzawi's health. Will you write him?
Please keep your letters polite and to the point... but let him know that this is not just about one person.... but about the dignity of a nation of people who care about what is being done in our name... and how this reflects on our nation as a whole... And if you are so inclined to write please do it soon... all of the documents are in this very capable judge's hands as of right now.... and I am off on Monday to visit with Al-Ghizzawi for for two days and how nice it would be to tell him that there was a groundswell of support for his cause by the people of the world.

The Honorable John D. Bates
United States District Court Judge
U.S. District Court for the District of Columbia
E. Barrett Prettyman U.S. Courthouse
333 Constitution Avenue, Northwest
Washington, DC 20001
(202) 354-3433 fax)


--Many have asked me why I did not sign on to the letter by some of the Guantanamo attorneys who are supporting Obama so I would like to take a moment to explain why I could not put my name on that document.
Obama has potential and of course I will vote for him if he is the democratic candidate butObama is NOT the poster child for doing the right thing for the men at Guantanamo. Let me start out by saying that I am from Illinois and when he ran for senate I worked on his behalf… it was exciting when he won that hotly contested senate seat… and then he went to the senate...
His very first vote was for Condi Rice and it went down hill from there… He later voted for either Roberts or Alito (for the Supreme Court) and the outcry from his constituents seemed to give him pause on the other ….
Most importantly he voted for the Detainee Treatment Act (DTA)…. That was the first attempt by congress to do away with habeas corpus...
The list goes on. His official mentor was Liebermann….until Liebermann lost the democratic nomination for his own senate seat.
I met up with Obama at a luncheon/fundraiser in Chicago in the late spring of 2006 (before he decided to run for president) I asked him if he heard a deep sigh coming from the people of Illinois every time he voted… He looked at me in surprise and I started ticking off the things he voted for… and against…. that were very disappointing… (I remembered many of them at that time..)
When I got to the DTA I said to him “I can’t believe that you, as a civil rights attorney yourself, would vote to take away the writ of habeas corpus”and his unfortunate response was “it was going to pass anyway”… I was quite shocked that he made that statement and asked him if that was his "new standard" ... anyway the conversation went downhill from there (ok maybe it wasn’t exactly uphill at any point…)

We all vote need to vote our conscience …. Or, if nothing else... pragmatically….

ButObama should not be held up to what he isn’t and he should not be portrayed as some kind of hero for the gitmo detainees…
by the way Obama did not even bother to show up for the ban on waterboarding a week ago….
Best regards,


(Click on the title to go to the original)

Roger Fitch Esq • February 21, 2008
Our Man in Washington
“Guantanamo Six” military commission trial is the opening shot in Republican election year strategy … Yet there’s a problem – most of the alleged “war crimes” occurred before there was a war … Administration’s torture definition finds its roots in health benefit policy
Harper’s blogger Scott Horton has observed that torture is the new litmus test for Bush administration officials:
“If you’re prepared to hedge on whether waterboarding is torture, then you might be counted upon to do anything.”
How else to explain the recent behaviour of leading figures in the government, e.g. the Justice Department’s Michael Mukasey and Stephen Bradbury, the CIA’s Gen. Michael Hayden, intelligence chief Adm. Michael McConnell, Homeland Security’s Michael Chertoff, the State Department’s John Negroponte, the Pentagon’s Gen. Thomas Hartmann.
No sooner had the Attorney General cleared the way for water torture to be classified legal and continued, than General Hayden chimed in with an admission that “waterboarding” had happened, while clearly lying about the number of times.
The very next day, the White House announced it was official policy, as Dan Froomkin reports.
Mukasey then added that in any case, if the Justice Department’s Office of Legal Counsel had once said it was “legal”, he couldn’t investigate it.
Next, the acting head of the OLC, Bradbury, told Congress that, while waterboarding was legal in 2005, it might not be now, but don’t worry, our version of water torture is different. Others disagreed.
As former OLC man Marty Lederman noted, Bradbury’s argument seemed to be, “At least we’re not as barbaric as the Spanish Inquisition”.
One historian claimed it was precisely the same.
According to Slate’s Dahlia Lithwick, it’s all part of a plan.
Vincent Warren of the Center for Constitutional Rights, which represents hundreds of Guantanamo prisoners, summed it up the best:
“At first, they said that they didn’t torture, which we know was a lie. And then they said that they didn’t waterboard, which we know is a lie. Now they’re saying that they do waterboard, but it’s not clear that waterboarding was torture. And now they’re saying it may be torture, but it might not have been torture under the rules a couple of years ago. What they’re trying to do, I believe, is set up a situation where they use the legal framework that they used at the time to be able to avoid a legal classification of waterboarding as torture currently.”
The provocative we tortured and we’d do it again stance seems to have been the opening shot in the Republican election year strategy: a military tribunal at Guantanamo showcasing “high value” detainees, some of whom are known to have been tortured.
* * *
As we know, the Bush administration does nothing extralegal by halves. The “Guantanamo Six” are charged with plotting September 11 and various earlier offences against US lives and property around the world, dating back to 1996.
A list of the 2,973 people killed on September 11 fills 67 pages of the Pentagon’s 90 page charge sheet.
There were 169 “overt acts” constituting the “conspiracy” and other “war crimes”. Of these, only five occurred after September 11 and consisted of such grave crimes as, “recorded many news stories of the attacks for future use in propaganda films” and exulting in their success.
This unseemly claim of credit, after 9/11, for crimes that began 12 years ago, has been transmuted by Pentagon lawyers into crimes against the law of war. Yet there’s a problem.
In the Supreme Court’s Hamdan decision (2006), the plurality said that, for a military tribunal to prosecute war crimes, the acts had to occur after war began, i.e. after September 11:
“Among the preconditions for such a tribunal’s exercise of jurisdiction are, inter alia, that it must be limited to trying offenses committed within the convening commander’s field of command, i.e., within the theater of war, and that the offense charged must have been committed during, not before or after, the war. Here, Hamdan is not alleged to have committed any overt act in a theater of war or on any specified date after September 11, 2001.”
Although the context in Hamdan did not involve an interpretation of the Military Commissions Act, it’s hard to see how a war crime can be committed without there being a war.
No doubt the Bush lawyers will claim that a discrete, pre-9/11 “war on terror” existed.
The charges alleged against the Guantanamo Six all purport to be “war crimes”, as described by the MCA, but only a few – if occurring in a theatre of war – could qualify as war crimes under international law.
Moreover, it’s amazing that the Bush administration believes it can prosecute men it has admitted torturing, e.g. Khalid Sheikh Mohammed.
One stratagem, to send in a “clean team”, has met with derision.
Another defendant, Mohammad Al-Qahtani, is also known to have been tortured, and the Pentagon’s revolting 83-page log of his interrogation is in the public domain.
In fact, in Al-Qahtani’s case, the personal, hands-on involvement of Donald Rumsfeld and the Pentagon General Counsel, William Haynes, is well-established (see my post of August 3, 2006).
* * *
It’s interesting to reflect that the justification of torture began with an August 2002 memo to Alberto Gonzales, penned by John Yoo for Jay Bybee, the then head of OLC.
Yoo found that the infliction of severe physical pain, unless “of an intensity akin to that which accompanies serious physical injury such as death or organ failure”, did not violate 18 USC 2340, the Torture Statute.
Rarely mentioned is the source of that definition. As Yoo noted, it had appeared in US laws “defining an emergency medical condition for the purpose of providing health benefits”.
According to Yoo:
“Although these statutes address a substantially different subject from Section 2340, they are helpful for understanding what constitutes severe physical pain. They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent impairment of a significant body function.”
See? It makes perfect sense.
And what happened to the lawyers?
Jay Bybee was appointed to the 9th Circuit Court of Appeals and John Yoo returned to a tenured professorship at the Berkeley Law School.
Gonzales, at least, is out of work.