An Exchange on Habeas Corpus

Speaking at the Senate Judiciary Committee's DoJ oversight hearings last week, Attorney General Alberto Gonzales made his curious views on habeas corpus quite clear:

SPECTER: Where you have the Constitution having an explicit provision that the writ of habeas corpus cannot be suspended except for rebellion or invasion, and you have the Supreme Court saying that habeas corpus rights apply to Guantanamo detainees — aliens in Guantanamo — after an elaborate discussion as to why, how can the statutory taking of habeas corpus — when there’s an express constitutional provision that it can’t be suspended, and an explicit Supreme Court holding that it applies to Guantanamo alien detainees.

GONZALES: A couple things, Senator. I believe that the Supreme Court case you’re referring to dealt only with the statutory right to habeas, not the constitutional right to habeas.

SPECTER: Well, you’re not right about that. It’s plain on its face they are talking about the constitutional right to habeas corpus. They talk about habeas corpus being guaranteed by the Constitution, except in cases of an invasion or rebellion. They talk about John Runningmeade and the Magna Carta and the doctrine being imbedded in the Constitution.

GONZALES: Well, sir, the fact that they may have talked about the constitutional right to habeas doesn’t mean that the decision dealt with that constitutional right to habeas.

SPECTER: When did you last read the case?

GONZALES: It has been a while, but I’ll be happy to — I will go back and look at it.

SPECTER: I looked at it yesterday and this morning again.

GONZALES: I will go back and look at it. The fact that the Constitution — again, there is no express grant of habeas in the Constitution. There is a prohibition against taking it away. But it’s never been the case, and I’m not a Supreme —

SPECTER: Now, wait a minute. Wait a minute. The constitution says you can’t take it away, except in the case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus, unless there is an invasion or rebellion?

GONZALES: I meant by that comment, the Constitution doesn’t say, “Every individual in the United States or every citizen is hereby granted or assured the right to habeas.” It doesn’t say that. It simply says the right of habeas corpus shall not be suspended except by —

SPECTER: You may be treading on your interdiction and violating common sense, Mr. Attorney General.

GONZALES: Um.

Hat tip to Think Progress

- Adrian Bleifuss Prados

Join the Flotilla!

Amnesty International invites you to join the Guantánamo Flotilla, an animated online petition demanding that the Guantánamo Bay detention camps be closed.

Pick a vehicle of your choice (be it dolphin, jet ski or pirate ship) and sail to the Caribbean to make your voice heard. The petition ends on June 26, International day for the Protection of Victims of Torture.

- Adrian Bleifuss Prados

A View From Abroad

In the Australian journal Justinian Roger Fitch weighs in on the case against Rumsfeld, recent Guantánamo litigation, the status of José Padilla and other developments.

Our Man in Washington

By Roger Fitch Esq.

The war crimes complaint against outgoing Secretary of Defence Donald Rumsfeld and others – e.g. torture-enabling Bush “lawyers” – is going forward in Berlin, as I foreshadowed in my last post. The Center for Constitutional Rights has this report.

More evidence is emerging against Rumsfeld, as Salon reports. According to The Nation, a prosecution of Rumsfeld is not as farfetched as some may think. At the very least, he will need to be circumspect in future about travel to countries claiming universal jurisdiction over crimes committed in other places, such as: Germany, Belgium, Denmark, France, the Netherlands, Norway, Spain, Britain, Canada and New Zealand.

And who knows? Perhaps even a post-Howard Australia.

One of the proposed defendants in the German case is Department of Defence general counsel William Haynes II, who signed off on one of the most notorious “torture memos” prepared by Bush lawyers.

For over three years, George Bush has sought Senate approval for Haynes’ appointment to the Court of Appeals. At his last confirmation hearings, the nominee admitted assisting in the Al-Qahtani “interrogation” in Guantanamo, the same procedure in which Rumsfeld took an active part (see my post of August 3).

Yet only a day after Haynes was named in Germany for war crimes, Mr Bush, in his wisdom and arrogance, nominated him once again for the 4th Circuit Court of Appeals. And why not? Jay Bybee (snap), Haynes’ fellow accused in Germany, is already a Court of Appeals judge. He got on the bench before the Senate learned about his torture memo.

At least the German charges were quite widely reported. However, little publicity was given in Australia to a legal opinion released by Melbourne’s Human Rights Law Resource Centre. The centre’s press release implied that the Howard Government’s ministers, no less than Rumsfeld, are not safe from war crimes charges, because…

the US proposal to try David Hicks before a freshly constituted Military Commission contravenes Article 3 of the Geneva Conventions in that such a trial is not capable of being regarded as a fair trial at international law … such a trial would be in contravention of the Australian Criminal Code ... ministers are subject to the Australian Criminal Code; and … to knowingly counsel or urge that such a trial be conducted before a Military Commission constituted under the relevant US legislation would constitute a war crime under the Australian Criminal Code.

* * *

Back in the US, a proud member of the Guantanamo Bay Bar Association has spoken out in no uncertain terms. In a Huffington Post blog, Gitmo defence lawyer Candace Gorman let the government have both barrels and didn’t shy from the words “war crimes”.

Ms Gorman was particularly outraged that one of her clients had received repeat Combat Status Review Tribunals (the laughable replacement for proper habeas hearings). The practice in question has just been reported in the new study by Seton Hall Law School, No Hearing Hearings. It seems the prohibition against double jeopardy, as with so many quaint “traditional” legal concepts, is unknown to Bush lawyers.

Not wishing to leave anything to chance or the human decency of the military personnel who sit on tribunals, the government is providing detainees with second, and even third, CSRTs.

These are needed when detainees are unexpectedly found to be “No Longer Enemy Combatants”, the expression Judge Robertson called “Kafkaesque”. However, that shouldn’t be a problem since detainees can be subjected to multiple CSRTs until the desired result is achieved.

* * *

Thanks to other members of the Guantanamo Bar and National Public Radio we now have audio tapes of some of the CSRTs. Interestingly, they are for the six Bosnian-Algerians collectively forming the Boumediene case. That’s the case now before the DC Court of Appeals along with the Al Odah (Hicks) case.
The NPR link is valuable as it also links the documents, including translated Bosnian court decisions and orders that prohibited the extradition of the detainees, whom the US summarily abducted (sorry, rendered) from Bosnia, far from any battlefield.

The Boumediene appellants’ brief in the Court of Appeals has just been filed. The brief for the Al Odah appellees, incidentally the first merits brief in which David Hicks’ military counsel Major Mori has joined can be found here.
The Boumediene case is one of only two the government won in DC district court. Success in both was due entirely to their fortuitous assignment to the slavishly Bush-friendly judge Richard Leon.

There are 15 district court judges in Washington who have ruled on detainee cases. Judge Leon is the only one who has been prepared to say that dusky aliens, arbitrarily branded “enemy combatants” – a category utterly unknown to law – have no rights which, to quote the Dred Scott case, “a white man is bound to respect”.

Richard Leon (snap) was happy to make such a ruling, even though the United States Supreme Court sent the Guantanamo cases to DC district court in 2004 for the express purpose of hearing the habeas claims of the detainees.
To add to the problems of the Bush administration, a federal court in New York is edging closer to requiring the production of the infamous post-9/11 presidential “order” that purported to authorise the CIA’s use of “alternative” interrogation techniques. For the first time, the government has admitted that the order exists.

The existence of a presidential directive authorising “enhanced interrogation techniques” was first disclosed in FBI reports obtained by the ACLU in FOI actions. Now, it is hoped the court will order the production of the presidential edict to see if such things as “water-boarding” – clearly torture – were approved.

A federal court in Los Angeles has just struck down another post-9/11 presidential order, one which designated “terrorist” organizations. The judge ruled that president Bush’s designation of 27 groups and individuals as “global terrorists” violated the Constitution because it was made without any explanation of the basis or standards for the designations. Here’s The New York Times report.

The government no longer shies away from what the world calls torture. But, according to the Justice Department, it’s either got to be kept secret (so “terrorists” won’t, say, learn how to resist mock-drowning) or irrelevant – or both. Consequently, the government has resisted any defendant’s ability to disclose mistreatment. It’s too much information.

For the Bush lawyers, torture requires a new “don’t ask, don’t tell” policy: that’s the import of filings in the DC district court habeas cases of Bismullah and Majid Khan, as well as in the ongoing Padilla criminal case in Florida and the Al Marri appeal in the 4th Circuit.

In these and other cases the DoJ seems prepared to argue once again that, even if it occurs, torture doesn’t matter because “enemy combatants” have no substantive legal rights. As for the hearings themselves, the “military commissions”, with their limited DC Court of Appeals review, provide far fewer procedural rights than were accorded Nazi and Japanese war criminals tried by the US.

In the Padilla case, the government is claiming, not only that the defendant mustn’t be allowed to talk about his detention and possible torture, but the jury must not hear about it – it might prejudice jurors against the government.
In yet another Catch-22, the government, by stonewalling the production of “irrelevant” military medical records, is effectively mocking Padilla’s inability to prove he was tortured while in military custody.

In the Al Marri case, which is shaping up as the next Supreme Court showdown, the Bush lawyers want judicial sanction for the right to strip all non-citizens in the US – even legal immigrants – of their habeas rights. All that would be required is a (conclusive) finding by Bush or his Defence Secretary that the miscreants are “unlawful enemy combatants”.

A number of interesting amicus briefs have been filed in support of Mr Al Marri, including that of Bill Clinton’s attorney general Janet Reno and other ex-DoJ officials, some from Republican administrations.

Reno’s brief is here and others have been linked by Lyle Denniston on Scotusblog.

And what about the world’s most dangerous driver, Salim Hamdan? His case is on remand to Judge Robertson’s district court after the successful Supreme Court decision of last June. Lyle Denniston has noted a long list of constitutional issues being presented this time around.
An interesting amicus brief for Hamdan has been filed by retired Judge Advocates General and can be found here.

Another matter floating around like a bad smell may yet return to haunt the government. That’s the case of the German citizen Khaled El-Masri, who was kidnapped by the CIA in Macedonia and mistreated in Afghanistan before being released in Albania, of all places. A case of “mistaken identity”, the US claims.

Aziz Huq reports how El Masri, who was deported the last time he tried to enter the US, will be admitted soon for an appeal.

He is appealing against a “state secrets” dismissal of his civil damages suit against the US government, which was argued in the 4th Circuit Court of Appeals on November 28.

Dana Priest of The Washington Post has more on his case.

* * *

In a final irony, Democracy Now’s Amy Goodman has discovered that Donald Rumsfeld’s palatial estate on Maryland’s Eastern Shore was once (before the US Civil War) the property and workplace of Edward Covey.

He was a notorious slave breaker who operated a corrective service for other plantations having difficulties with their slaves.

One of his “visitors” was Frederick Douglass, the famous American abolitionist whose home, Cedar Hill, is now a museum in Washington.

The name of Covey’s establishment and Rummy’s estate? Mount Misery.

...more videos

Check out these videos from the Make Some Noise "Close Guantánamo" campaign.

Guantanamo Unclassified

Having overcome some technical difficulties, we can now post this much-requested YouTube video on Adel Hamad, another innocent man languishing in Guantánamo.

British MPs Take (a weak) Stand on Guantánamo

British lawmakers have issued a report urging Britain to pressure the U.S. to close its detention facilities in Guantánamo.

However, opposition MPs and human rights organizations have panned the report which calls for the closing of Guantánamo only as soon "as may be consistent with the overriding need to protect the public from terrorist threats." Although the report's authors spent only one day in Guantánamo and had no access to detainees, they assert that while abuses "almost certainly" occurred they are "unlikely to be taking place now."

Liberal Democrat MP, Sarah Teather dismissed the report saying the committee had been given "the VIP antiseptic tour." Amnesty International described it as a "missed opportunity" and attorney Clive Stafford Smith, the director of Reprieve, found the report to be full of factual errors and apparently based on a "show tour."

- Adrian Bleifuss Prados

H. Candace Gorman Talks to the Dog

The Talking Dog, one of the brighter lights of the blogosphere, currently features an extensive interview with Candace.

Here is a highlight:

The Talking Dog: Any thoughts on where the end game will go as far as the court system?

H. Candace Gorman: I don’t have much confidence in the courts (other than the Supreme Court) doing anything to help these men get their day in court. I think the men will continue to dribble out of Guantanamo. Now there is 395. Next month another 20 or 30 will be gone, and so on….

The Talking Dog: Do you have any thoughts on whether the recent Cindy Sheehan protest will do any good, or if any protests have done any good?

H. Candace Gorman: I am a strong believer in public protests. I am one of the attorneys representing protestors that were arrested in Chicago at the start of the Iraqi war. The case has been dragging on while we wait for the judge to rule on the city’s summary judgment motion, at first I was mad it was taking so long… now I couldn’t be happier. It will be hard to find a jury that will think my clients were wrong in protesting but I couldn’t say the same two years ago. Protests get people thinking and talking, that is always good. Cindy Sheehan is my hero. She has done more to bring attention to the travesty of the war in Iraq (and now the travesty at Guantanamo) than anyone else.The

Talking Dog: Is there any sense that public attitudes are shifting-- that the public is realizing that with over half of the detainees just summarily released, they are hardly the worst of the worst...

H. Candace Gorman: Those released are presumably "the best of the worst!" Unfortunately, so far, my clients are still in the "middle of the worst". Of course, this isn't really funny... The public attitude is shifting the more it learns... it's not so much a matter of time, as it is about facts slowly accumulating, realizing what is happening.

The Talking Dog: Well at least we're feeding the detainees lemon chicken and rice pilaf...

H. Candace Gorman: Funny you should say that; a couple of detainees have complained that they are gaining weight... they are being fed a high carbohydrate diet of late, which may be a new strategy to fatten them up to make them more complacent prisoners... or at least more lethargic.

The Talking Dog: Is there anything else that I should have asked you, or anything else that my readers or the public needs to know about Gitmo, the war on terror, the government's detention policy, or its regard for our Constitution?

H. Candace Gorman: We should all be very concerned about what this Administration is doing. This week the Pentagon announced it is looking at our bank records, not because they think anything criminal is going on but because they can learn stuff…They are listening to our phone calls and reading our emails… Every day there is something new and illegal that we learn they are doing… it is hard to keep up. Harder still to stop them from breaking the law. But we must.

Mr. President, Close Down Guantánamo

Tom Wilner on the Steps of the Supreme Court at a rally marking the fifth anniversary of the Guantánamo Bay detention camps.

Courtesy of Anant Raut

Candace on Cully Stimson

Deputy Assistant Secretary of Defense Stimson's attack on lawyers representing Guántanamo inmates caused an uproar over the weekend.

Candace Gorman posted an open letter to Charles "Cully" Stimson on Huffington Post:

An Open Letter to Cully Stimson:

Cully, Cully, Cully,

Where do I begin?

Perhaps we should start by correcting the record (that is what real attorneys do). These media people were a little too fast on the draw in quoting you and well you know... fair is fair.

You were reported as saying (not in response to any question so it is clear that you must have been planning this... and you did have the list of law firms with you for your little radio broadcast...)

"Actually you know I think the news story that you're really going to start seeing in the next couple of weeks is this: As a result of a FOIA request through a major news organization, somebody asked, who are the lawyers around this country representing detainees down there, and you know what, it's shocking. The major law firms in this country..."

(Let me just inject here that you listed a few of the big firms involved but I want to tell you that a lot of the Guantánamo attorneys feel slighted that you didn't mention them... myself included... although I suppose I am not a big enough firm with only two attorneys. But you never know Cully; I could have big corporate clients too!)

"...all the rest of them are out there representing detainees, and I think, quite honestly, when corporate CEO's see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out."

(You then go on to suggest that the attorneys might be on somebody's payroll... ohh, Cully if only that were true I might have made a profit last year instead of ending up in the red....) So let us first tell everyone what you really said because it really was not the more neutral (or should I say less insidious) "and we want to watch that play out" was it Cully? No what you really said was "and it'd be FUN to watch that play out." Is that how you have fun Cully? And here I thought you had your fun watching men (that you must know have done nothing wrong) languish at Guantanamo without charges and otherwise dismantling our Constitution.

So Cully now that we have cleared up what you actually said, I am dying to know how long you and Monica Crowley have been working on this story? Did you find her or did she find you? Any money change hands? Maybe some kind of special grant? We know how this administration likes to pay for what it thinks could be a good story (oops on this one, huh?) You sounded so proud of yourself on that little radio show... it was so clear listening to you that you just couldn't wait any longer to spill the beans. Is Monica mad at you now?... her little story won't be much of a story now... and she spent $50 on the FOIA request! Maybe a reimbursement is in order, if you haven't already... or did you waive the fee for her?

And Cully what about those "terrorist who hit their (the CEO's) bottom line"? What is that all about? See a lot of us looked at what happened on September 11th , in terms of the human cost but you seem to think of that sorrowful event a little bit differently. It seems you don't think that the corporate CEO's should be mad at these attorneys because the CEO's hate terrorists or are flag waving Americans, your concern seems to be (and you think the corporate CEO's share your concern) that the tragedy of 2001 was the corporate bottom line. Geez Cully is that what this is all about?

Cully, I am not even going to bother to ask why you (an attorney yourself and the assistant secretary of defense for detainee affairs) think it is appropriate to try and exert financial pressure against the lawyers who are representing Guantanamo detainees. You obviously skipped ethics in law school (I didn't know you could skip that class but maybe you had connections?) Let me just point out that the big firms that have been involved in this litigation have not tried to hide their involvement from anyone (nor have the teeny tiny firms like mine). You probably don't read newspapers but almost everyday across this wonderful country of ours you will see op-eds and letters to the editor from these very same attorneys, proudly signing their names and the firms that they are with. You see Cully we are proud of what we are doing. I bet you can't say the same.

Candace in In These Times

Check your newstands, Candace appears in this month's issue of In These Times.

In "Diary of a Guantánamo Attorney," Candace recounts how she came to represent a Guantánamo Bay detainee. She also describes the remarkable burdens and constraints placed on GTMO habeas counsel.

At a conference call for volunteer lawyers I naively asked, “What about attorney-client privilege?” This, like so many other protections and legal principles, doesn’t apply to Guantánamo. Attorneys often return from the base with urgent news, but have to wait weeks for the government to clear their notes. The government rarely, if ever, classifies the content; this procedure simply delays and encumbers our work.

A Symposium

On March 23, CUNY School of Law will host a symposium on Guantánamo Bay. The organizers are calling for papers in international human rights law, criminal procedure, military law and other fields related to Guantánamo and U.S. detention policy. The New York City Law Review will dedicate a full issue to the symposium; both academics and practitioners are encouraged to make submissions.

An itinerary offers a preview of the interesting discussions planned for the conference. These include: the role of international law in Guantánamo litigation and the impact of Guantánamo on domestic policies. The meet-up will also celebrate the 40th anniversary of CCR.

- Adrian Bleifuss Prados

A Grim Anniversary

Five years ago today, Guantánamo opened its infamous prison camps.

Candace Gorman has two new articles observing this sad marker. In Guantanamo Five Years Later: The Graveyard of Human Rights (apearing in Huffington Post), Candace offers an overview of the camps' history, from the brutality detainees endured during their capture and transport to the opening of Camp Delta.

FIVE YEARS LATER... But Who's Counting?, written for MichaelMoore.com, Candace has a more personal reflection on her client, Mr. Al-Ghizzawi and his ongoing unjust detention.

When Mr. Al-Ghizzawi was explaining to me his early years at Guantanamo, he told me about a flower that had appeared outside his cage in the spring of 2002. Just one little flower poking its beautiful leaves and petals out of the sand. He was describing the flower to me, but I couldn’t quite figure out what kind of flower it was. He called it a primrose and maybe it was. He said to me “I am like that little flower. It didn’t belong there…. I don’t belong here either.”

Op-Ed from Thomas P. Sullivan

In the aftermath of Saddam Hussein's execution, Thomas P. Sullivan of Jenner & Block reflects on the fact that the Iraqi dictator was offered at least some modicum of procedural justice. The same can not be said for the prisoners in Guantánamo.

Consider The Irony Of Guantanamo Bay
From the Chicago Tribune, January 5, 2007

By Thomas P. Sullivan

What an irony, what a contradiction! Although the trial may have been flawed and the execution precipitous, the Iraqi government afforded a mass murderer, Saddam Hussein, basic rights before judgment was pronounced. Hussein was presented with written charges, provided the assistance of lawyers, the government was required to introduce proof to support its charges through competent witnesses, whom his lawyers were permitted to cross-examine, and he was allowed to produce evidence in his own defense.

Compare this to the way our government has handled the cases of more than 400 men, most of whom have been held almost five years in a prison at Guantanamo Bay, Cuba. Not a single one has been given a hearing at which the government has been required to produce evidence explaining why he is being held, or had the assistance of a lawyer, or an opportunity to produce evidence in his own defense. No so-called classified evidence has been revealed. No independent judges have presided.

It now appears clear that virtually none of these men will ever receive these kinds of trials. United States officials have announced that only a handful of the prisoners will be tried before the newly created military commissions, while the others will continue to languish indefinitely in their tiny cages.

Army and Navy brass have become accessories to this scandalous state of affairs by continuing to claim that the prisoners are dangerous, the "worst of the worst," as though this provides justification for continuing to jail them without hearings. Even more shameful, a congressional majority mindlessly succumbed to White House pressure by voting to deprive the prisoners of the right to seek relief in federal courts.

It has been argued that "military necessity" precludes providing legal protections to the prisoners and that to do so will interfere with conduct of the "war on terror." But these men are not held on or near a battlefield. They are isolated on a remote island; almost none has been questioned within the past two years; they no longer have unplumbed "intelligence" value.

The cost to maintain this prison, and the need to provide round-the-clock supervision, is clearly inconsistent with our national interests. Far better to charge and try those where there is solid evidence they committed punishable offenses and release the others without further delay, expense and diversion of military and civilian personnel. Those found guilty should be sentenced appropriately, and those not charged or found not guilty after trial should be returned to their native countries. The least we should do for them is what was done for Saddam Hussein.

Refusal to afford due process of law to these men is a national disgrace. If compliance with fundamental principles is insufficient to motivate our leaders--if they require selfish reasons to move them to action--they should bear in mind the precedent they are setting for how other nations may treat our citizens taken into custody abroad.

Thomas P. Sullivan, who represents a number of prisoners at Guantanamo Bay, is a partner in the law firm Jenner and Block and was co-chair of the Governor's Commission on Capital Punishment. He was the U.S. attorney for the Northern District of Illinois from 1977 to 1981.

Sheehan to Visit Guantánamo

This week, activist Cindy Sheehan travels to Cuba to protest the Bush Administration’s detention policies in the “war on terror.” On Wednesday ‘Peace Mom’ Sheehan and other human rights activists will speak at a conference in the Cuban city of Guantánamo and participate in a demonstration at the gates of the U.S. base.

Sheehan makes her case in a letter from Havana:

We travel to Guantanamo tomorrow to begin our march for peace and humanity and to demand that the U.S. give each and every inmate his due process, treat them humanely, whether it is to release them or have them properly incarcerated if found guilty (by a criminal court, not a kangaroo court) and then close down the gulag of Guantanamo.

Our country should be above such inhumanity. Most people would be sick at heart if we discovered that dogs were being treated so horribly - these are human beings, not animals.

Every American who realizes that violence only spreads violence and torture only spawns hatred should stand up on January 11th in solidarity with our contingent in Cuba to call for an immediate closure of Guantanamo and for the restoration of habeas corpus that was stolen from us by the 109th Congress...

CCR: Close Guantánamo

As the 5th anniversary of the Guantánamo Bay prison camps approaches, the Center for Constitutional Rights has a new statement on the U.S. detention facility:

Nearly four hundred men continue to languish at Guantánamo. After five years of imprisonment outside the law, humiliation, physical & mental abuse and torture, and separation from their families, the notion that Guantánamo can ever be a normal prison for them must be abandoned.

CCR distinguishes itself from other NGOs in that it believes Guantánamo is beyond reform. Improvements in prisoner conditions and reforms in “interrogation techniques” are impossible to enforce and do not address the fundamental injustice of imprisoning human beings for years without charge. As CCR reasons,

If there are people in Guantánamo who have committed a crime, our government can subject them a court martial or civilian criminal trial. Any convicted defendants can serve out their time in existing military or civilian prisons. We don't need Guantánamo, and it has jeopardized our national security far more than it has furthered our security or intelligence...