New on Huffington Post:

Candace reflects on Moe and Cully.... could Larry be far behind? We are waiting with baited breath to witness the Bush administration's next attack on Guantánamo habeas counsel. Read her latest post on Huffington, "Is there a Larry Lurking in the Bushies?"

What's more American than a do-over?

From The Oregonian

GUANTANAMO IN COURT

Wednesday, May 16, 2007

David Sarasohn

For five years, people have been complaining that the prison at Guantanamo Bay follows no real legal procedures. But evidence in a hearing in Washington, D.C., this week suggests that Guantanamo has plenty of legal procedures.

In fact, according to The New York Times, if a military tribunal hearing to decide whether a prisoner is an enemy combatant turns out in a way the government doesn't like, the government holds another one. Lawyers complain that the hearings have no relation to American legal principles, but what's more American than a do-over?

The U.S. Court of Appeals for the D.C. Circuit, just below the Supreme Court, is hearing a series of challenges from several groups of prisoners to the operation of Guantanamo's military tribunals. It's the Bush administration's position, of course, that the courts really don't have to bother.

According to the administration's reading of a law passed by Congress in 2005, courts have power only to decide whether the tribunals are following their own rules. Lately, the administration has suggested some interesting new rules, such as limiting lawyers' visits and checking out previously confidential communications between prisoners and their attorneys.

Tuesday, lawyers for prisoners asked for a broader review of the procedures, pointing out that was, well, what judges were supposed to do. Some judicial responses suggested sympathy for that idea.

Concerned about limited information from the government, Judge Douglas Ginsburg noted, "I don't see how there can be any meaningful review if we don't know what we don't know."

When a Justice Department lawyer suggested that the tribunals resembled procedures in the Army Field Manual, Judge Judith Rogers warned him, "You'd better not invoke that," pointing out that lots of the manual's procedures were missing in the tribunals.

The administration has had some embarrassing judicial defeats on the subject of Guantanamo, and it seems that even after the last Congress passed new laws to try to write courts out of the issue, it might be facing some more. "The D.C. Circuit is skeptical of the government's restrictions on lawyers, of how limited the scope of courts is in the government's view," says Jonathan Hafetz, litigation director of the Liberty & National Security Project at NYU Law School's Brennan Center for Justice. "It shows the need for court review. You can't just leave this to the executive branch."

On Guantanamo, and military tribunals, the government has managed to take a procedure with minimal legal credibility and no international acceptance and make it look steadily worse. In addition to trying to write courts out of the oversight process, the last Congress passed the Military Commissions Act, declaring that Guantanamo prisoners had no habeas corpus right to ask a court why they were being held. Then, the administration decided that lawyers had too much of a role in the process. And of course there was the do-over rule. One of the prisoners represented in a D.C. hearing went through the process once and was found not to be an enemy combatant, but a second time around straightened that out.

"The tribunals in general are a kangaroo court," says Tom Johnson, a lawyer at the Perkins Coie firm in Portland, who represented and secured the freedom of Ihlkham Battayav of Kazakhstan, a cook's assistant in a Taliban camp who was held for four years. "My client had no idea what was going on when he walked into the room."

A prisoner does not have an attorney present at the tribunal. There is an officer assigned to him, says Johnson, but "that person is told not to advocate on behalf of the detainee, but just to make the detainee know what's happening" -- which would not include showing the detainee evidence against him that's been declared classified.

Once again, the issues about Guantanamo, and military tribunals, are on a long march, first through the D.C. Circuit Court of Appeals and then to the Supreme Court. But we don't need a judicial decision to recognize that Guantanamo is a situation that our principles won't support and our friends will not defend.
We need to reconsider what we're doing there.

In fact, we need a do-over.

The despair...

Jurist reports that Joshua Colangelo-Bryan, lawyer of Jumah Muhammad al-Dossari, has released a letter from his client in which al-Dossari expresses his desire to kill himself. Al-Dossari, who has been held without charge for five years, has attempted suicide on several occasions (acts which Admiral Harris calls "asymmetrical warfare"). We call it depression and dispair.

Jonathan Hafetz on Habeas Corpus

Jonathan Hafetz, of the Brennan Center for Justice, has written an excellent white paper Ten Things You Should Know About Habeas Corpus. In nine pages, Hafetz makes short work of the Bush administration's unprecedented assault on that venerable cornerstone of our legal system.

last week, Hafetz addressed the the National Press Club regarding the restoration of habeas corpus. His remarks are worth reading.

Here is a highlight:

The Administration and other supporters of the recent court-stripping Military Commissions and Detainee Treatment Acts argue that federal judges should not be in the business of exercising this review and that habeas corpus has not been able to foreign nationals during wartime. Those arguments are misinformed: habeas has been available in wartime, both to citizens and non-citizens alike. But, more importantly, it is the very nature of the so-called “Global War on Terrorism” that makes habeas so essential. Unlike past conflicts, this struggle has no clearly identifiable enemies, no recognizable battlefields, and no foreseeable end. Some in the Administration now refer to it as “the long war.” It is precisely the indeterminate, open-ended nature of this struggle that increases the risk that government officials will detain innocent people based upon unfounded suspicion, innuendo, or mistake. (Indeed, a confidential CIA memo written in 2002 reported that most of the Guantanamo detainees “didn’t belong there”; regrettably, it was ignored by Administration officials in Washington). And since the “Global War on Terror” will last for generations, mistakes are of greater, potentially lifelong – consequence to those wrongfully imprisoned as “enemy combatants.”

DIAZ RECEIVES SIX MONTHS

For those of you not familiar with Matthew Diaz he was a military lawyer at Guantanamo in 2004-05. I have to admit I do not know as much as I should about Diaz. But it seems that about eight months after the Supreme Court ruled in June 2004 that the Guantanamo detainees were entitled to legal representation Diaz sent the name of the detainees to the Center for Constitutional Rights in New York. At the time Diaz said that his decision was the right decision because of how the detainees were being treated and he reminded everyone that his oath was to the U.S. Constitution. That would be the same oath (to the same Constitution) that Gonzales took… but it seems that Diaz took his oath a bit more seriously. As Diaz’s time at the base was nearing an end he stated "I had observed the stonewalling, the obstacles we continued to place in the way of the attorneys.” "I knew my time was limited. ... I had to do something."
Diaz has apologized for his actions. I hope one day I can apologize to Diaz for the actions taken by our country against him…. A country that has lost its moral compass and sentenced this man to six months for doing the right thing.
Thank you Lt. Comdr. Matthew Diaz. You are a hero.

GONZALES MUST RESIGN

I applaud the 2/3’s of the Harvard Law School Class of 1982 for speaking out publicly against their classmate. I would have liked to have been a fly on the wall as that letter was being drafted….fifty six lawyers from Harvard drafting a letter…. And they still managed to get it out in a timely fashion. That alone is a wonder.

I am not one of Gonzales’ Harvard classmates. I graduated from the John Marshall Law School in Chicago six months after Gonzales graduated from Harvard Law School. I admit that it is not a remarkable fact that I am calling for Gonzales’ resignation. In fact, I feel certain that no one will be surprised that I do not think his resignation is enough. Gonzales is the man that said yes to torture, yes to indefinite detention, yes to the illegal surveillance of American citizens… and yes to a bunch of things we still don’t know about and a bunch of things I am forgetting… but we know that there is more illegal/immoral conduct lurking behind the bushes, because frankly, Gonzales is just that type of criminal "yes man."

Gonzales must be tried for his crimes and he must be punished. If we are to preserve our constitution it is time for everyone to step up to the plate and demand that Gonzales be removed from the position of Attorney General. Please call your senators on Monday and demandthat Gonzales be removed from office.

GONZALES' CLASSMATES SPEAK OUT

Fifty-six members of Attorney General Alberto Gonzales' graduating class at Harvard Law School signed a quarter-page open letter in yesterday's Washington Post excoriating their former classmate for his "cavalier handling of our freedoms."

AN OPEN LETTER TO ATTORNEY GENERAL ALBERTO GONZALES
May 15, 2007
Dear Attorney General Gonzales:

Twenty-five years ago we, like you, graduated from Harvard Law School. While we arrived via many different paths and held many different views, we were united in our deep respect for the Constitution and the rights it guaranteed. As members of the post-Watergate generation who chose careers in law, we understood the strong connection between our liberties as Americans and the adherence of public offi cials to the law of the land. We knew that the choice to abide by the law was even more critical when public officials were tempted to take legal shortcuts. Nowhere were we taught that the ends justifi ed the means, or that freedoms for which Americans had fought and died should be set aside when inconvenient or challenging. To the contrary: our most precious freedoms, we learned, need defending most in times of crisis.

So it has been with dismay that we have watched your cavalier handling of our freedoms time and again. When it has been important that legal boundaries hold unbridled government power in check, you have instead used pretextual rationales and strained readings to justify an ever-expanding executive authority.

Witness your White House memos sweeping aside the Geneva Conventions to justify torture, endangering our own servicemen and women; witness your advice to the President effectively reading Habeas Corpus out of our constitutional protections; witness your support of presidential statements claiming inherent power to wiretap American citizens without warrants (and the Administration's stepped-up wiretapping campaign, taking advantage of those statements, which continues on your watch to this day); and witness your dismissive explanation of the troubling firings of numerous U.S. Attorneys, and their replacement with others more "loyal" to the President's politics, as merely "an overblown personnel matter." In these and other actions, we see a pattern. As a recent editorial put it, your approach has come to symbolize "disdain for the separation of powers, civil liberties and the rule of law."

As lawyers, and as a matter of principle, we can no longer be silent about this Administration's consistent disdain for the liberties we hold dear. Your failure to stand for the rule of law, particularly when faced with a President who makes the aggrandized claim of being a unitary executive, takes this country down a dangerous path.

Your country and your President are in dire need of an attorney who will do the tough job of providing independent counsel, especially when the advice runs counter to political expediency. Now more than ever, our country needs a President, and an Attorney General, who remember the apt observation attributed to Benjamin Franklin: "Those who would give up essential Liberty to purchase a little temporary Safety, deserve neither Liberty nor Safety." We call on you and the President to relent from this reckless path, and begin to restore respect for the rule of law we all learned to love many years ago.

Yours truly,THE SIGNATORIES ARE ALL MEMBERS OF THE HARVARD LAW SCHOOL CLASS OF 1982

HICKS IS BACK IN AUSTRALIA

May 20, 2007
Terror Detainee Back in Australia
By AGENCE FRANCE-PRESSE

ADELAIDE, Australia, Sunday, May 20 (Agence France-Presse) * David Hicks, the Guantánamo Bay detainee who pleaded guilty to a terrorism charge, returned home to Australia on Sunday to complete his sentence, after more than five years in detention at the United States military base in Cuba.

Mr. Hicks, 31, was to be taken to the maximum security Yatala prison. He was sentenced in March to seven years in prison after he pleaded guilty to providing material support for terrorism. Under a deal with American prosecutors, most of his jail sentence was suspended and he will be able to walk free before Jan. 1, 2008.

Mr. Hicks, who was arrested in Afghanistan in late 2001 and sent to Guantánamo early the following year, was held for years without charge and spent significant amounts of time in solitary confinement.

In March, he made a surprise plea bargain, pleading guilty to providing material support for terrorism in exchange for being allowed to serve out his term on Australian soil.

Under the deal, he has agreed to withdraw all claims of mistreatment during his
time in Guantánamo Bay and is barred from speaking to the news media for a year.

An informed public...

From Rob Rogers of the Post-Gazette

THE MYTH THAT KEEPS ON GIVING

The pentagon always likes to spin the news when important court dates are upon them. Today arguments are being heard in the D.C. appellate court that will determine the rules the habeas counsel will be subjected to during our next phase in the litigation. So on the eve of this important argument the Pentagon wanted to show the court just how dangerous the detainees are. Since there was nothing new, the pentagon did a re-release of old FAKE news. The pentagon released the "news" that 30 men that were released from Guantanamo "returned to the battlefield." They also said they were releasing the names of six of those men. I haven't received the full six names yet but three of the men "named" were named in previous releases and debunked by me in the articles "the guantanamo myth" and "guantanamo myth no. 2" on these pages.
UPDATE
Four of the names were already dubunked by me... with the help of the governments own records. Of the remaining two we have the 13 year old detainee who was released when he was 15 and at some point after his release he was ostensibly picked up with papers saying he is in good standing in the Taliban. The papers gave him passage in the area of Afghanistan where he lives which is a Taliban stronghold. No indication he was fighting. He would be 18 or so now.
As to the other man, the government claims he was released in 2003 but there is no information that he has been found back on the battlefield only that he is wanted for being a Taliban leader.

More news....

• Editorial from the Times Argus: "The United States is not 18th century France where people were left to rot in dungeons. Except that is how the government is behaving.The Democrats should not fear taking action to correct the unconstitutional abuses of the Bush administration. That is why the people elected them last November. It is no longer in the political interest of Democrats to behave in the timorous fashion of the past. Voters not longer have the patience for that. The Constitution needs its defenders....READ MORE
• David Hicks' military lawyer, Major Mori, has been passed over for a promotion and demoted to "trainee judge" in what Australian newspapers are calling retaliation for his spirited defense of his client. (The Sydney Morning Herald)
• Clive Stafford Smith has written a new book, reviewed here in the Daily Mail. The Mail critic writes that Stafford Smith had delivered an "indictment of the detention centre, which is all the more devastating for being expressed in such temperate terms."

- Adrian Bleifuss Prados

HELL IS HOT

The heat, like everything else at Guantánamo, is oppressive. As I was waiting to see Mr. Al-Ghizzawi at camp six I was thinking about the men who were having “rec” time at that moment. The detainees at Camp 6 get two hours outside, but there is no shade in the exercise yard. Which is better, to come out during the night and never see the sun or come out during the day and stand in the blistering heat? I cannot even imagine having to make that choice. Of course the men at Camp 6 do not have a choice.

Adding to the heat index (or maybe it is to the oppression index) are the constant shenanigans by one captain McCarthy. Actually he may have another rank now, I know after the judge in one of my two cases gave an affidavit signed by McCarthy (under oath) “zero weight” (aka he is a liar) he got a promotion … (sound familiar?) McCarthy is in charge of the military lawyers at Guantánamo and from what I hear he considers himself an honest guy. As with the bushies, honesty takes on new meaning if this guy is an honest guy… Anyway, the latest shenanigan at the base involves the documents that we attorneys can bring into our meetings with our clients. A court order sets out the rules. We attorneys carefully abide by the rules set up by the court. The military on the other hand tries (sometimes successfully) to just ignore the court rules. The military philosophy was summarized very nicely by an escort who told me on my very first visit to the base “court orders don’t work here, we consider those only advisory.”

When I showed up for my first day of meetings with Mr. Al-Ghizzawi this week I had with me the usual set of documents. I always bring all of my recent correspondence in both English and Arabic. Sometimes I am lucky enough to have some of the court papers and judicial decisions translated into Arabic (thanks to the big law firms who take on these additional expenses) and I bring those along too. During the course of our two days of meetings I always review with Mr. Al-Ghizzawi the various letters and legal materials to make sure he understands what I was writing to him about.

In the morning of my first day of meetings everything was what passes for normal at Guantánamo. I went to see Mr. Al-Ghizzawi and we spent some time going over the letters and discussing other issues. Then comes the two hour break. They make us leave at 11:30 and if we are lucky we are back in by 1:30 (we use to leave at noon and come back at 1:00 but I guess they decided we needed a longer lunch!).

When I arrived in the afternoon to see Mr. Al-Ghizzawi I was told that I was no longer allowed to bring in any documents in Arabic unless “they” review the Arabic first. Problem is, “they” are not allowed to review letters that we attorneys send to our clients. Ooops new rule… who needs judges when the military can make up its own rules? Anyway I met with Mr. Al-Ghizzawi that afternoon and the next day without the benefit of my letters in Arabic… a little bit cumbersome but I did not want to give up my visit to fight this particular battle.

But I knew I did not want to have to go thru this with my other client Mr. Razak Ali on Thursday because I only had one day with him. I asked one of the escorts how I could get my letters in Arabic “approved” and he told me that I had to submit the materials to one of the escorts, who would then take the materials for approval and obtain a “red stamp” so that I could take them into the meeting. The red stamp part sounded kind of communistic for the military but as the disc jockey said on the local radio station that very morning… we are a “captive audience”. I wanted the approval so I was willing to jump through the hoop.

The next morning I gathered all of my legal materials for Mr. Razak Ali and brought them to one of the escorts. I included a letter with the materials explaining that I was giving all of my legal materials in English and Arabic that I planned to review with Mr. Razak Ali during my meeting the next day.
Surprise, surprise. That afternoon when I finished my meeting with Mr. Al-Ghizzawi I received a response to my request. My request was denied and my materials were returned to me. It seems letting “them” read my attorney client communications wasn’t enough so they added a few more hoops that I could not jump through over night.

I discussed this with some of the other attorneys that were at the base visiting their clients and I decided that I would have to protest the decision. The protest would not help me for my Thursday meeting but I was not the only attorney who would be affected by the rule changes. (As far as I know!)

When I got back to our quarters I alerted the gtmo attorneys back home of the “new rules” and one of them volunteered to file for emergency relief. He was heading down next week and he also wanted to bring Arabic legal materials. That evening I drafted a “protest” to the decision and I pointed out that the military was once again violating the court’s order. I assured them (McCarthy) that I would immediately, upon my return home, file a “Rule To Show Cause” asking the court to find the government (again) in contempt of court (the last time I filed one of these was when McCarthy decided to lie thru his teeth in an affidavit to the court). In addition I stated that I would seek a new trip down to the base on their dime so that I could complete my meetings (much to McCarthy’s chagrin I got that relief once already because of his conduct). I gave my protest letter to one of the escorts the next morning. At the same time counsel back on the mainland were preparing emergency papers and negotiating with government attorneys.

Something unusual happened that afternoon. McCarthy caved. He (through his minion) admitted that legal materials could be brought into meetings in any language. Unfortunately the fact that they were willing to follow the rules again, for a minute or so anyway, did not help me this trip. In all honesty, I don’t think they caved because they feared defending themselves in court against me again (they don’t care enough). Caving on this point more likely had to do with the fact that there is an important appellate argument this coming week and the government is under the gun to show that they are not impeding the work of the attorneys. This flare up would have been picked up by the media and had the potential to be an embarrassment.

You might have also read that the government caved on its desire to limit attorney visits to three. The government asked the court to limit our visits to a maximum of three because we attorneys are causing “unrest” at the base. They backed down late Friday and withdrew that request… but don’t think it is because they had a change of heart about our presence. They are still asking the court for the right to terminate all attorney visits without prior notification or approval from the court.

Under that proposal we might not even get the three visits.

I am afraid Hell will remain hot for quite some time.

More Good Stuff on the Talking Dog

In case you missed it, last month the Talking Dog landed an interview with Donald Rumsfeld.

A selection:

The Talking Dog: Secretary Rumsfeld, I can't thank you enough for agreeing to this interview. May I say how open-minded it is for you to speak with me, given how critical of you I have been, particularly of detention policies you administered and authorized that I believe verge on, if not outright constitute, war crimes. Do you have a comment on that?

Donald Rumsfeld: Stuff happens. It's untidy, and freedom's untidy, and free people are free to make mistakes and commit crimes and do bad things.The

Talking Dog On the subject of detention policy, can you comment on the recent confession at Guantanamo by Khalid Sheikh Mohammed, and the recent guilty plea there by Australian national David Hicks, who received a 9-month sentence after we held him for over 5 years?

Donald Rumsfeld: You go to asymmetrical war with the rack and thumbscrews that you have, not with the rack and thumbscrews that you might want or wish to have at a later time. READ MORE

Is it satire? These days it's hard to tell.

Hicks Heads for the Land Down Under...

David Hicks is scheduled to fly to Australia, perhaps as early as next week, to serve his perfunctory nine-month jail sentence.

Hicks' attorneys did a good job with their client's plea bargain. However, that David Hicks must spend any more time in prison after years of isolation, abuse and denial of due process is an outrage.

Part of the Hick's agreement stipulates that he will not speak to the media for the period of one year. The Australian federal elections are in January, 2008....how very convenient for PM John Howard, Bush's pal in the southern hemisphere.

Source: The Australian

- Adrian Bleifuss Prados

THE ATTORNEY CLIENT RELATIONSHIP

Oh my. Seems one of the big news stories Saturday morning is the fact that some of our Guantánamo clients get frustrated at the lack of progress as we try to get them out of that hell hole.

Can you blame them? Of course not. These men have sat at Guantánamo for more than five years and most of them are innocent of any wrong doing. Our government knows most of these men were picked up by mistake...First we dropped thousands of fliers all over Afghanistan, Pakistan, and who knows where else, offering huge bounties for “murderers and terrorists” and then we were duped into buying these guys from the Pakistani's and the Afghan war lords... and we paid a handsome price for them too.

Of course our military could not be bothered trying to figure out who these men were so we just paid up and took them all. Eighty-two of the men being held at Guantánamo were cleared by our government for release more than 2 years ago because the government admitted that they were captured "by mistake". Since then the government stopped admitting the mistakes and stopped “clearing” the men because it is too embarrassing (even for these clowns) to have all of these men cleared for such a long time but not released... and, get this, the only country we could cajole into taking detainees that we captured by mistake has been Albania…. I guess the coalition of the willing is not quite so willing on this score!

When I took on the representation of Mr. Al-Ghizzawi and later Mr. Razak Ali I knew that this would not be any typical legal representation. For one thing the litigation in court has all been stayed (put on hold) since before I was even involved... You see attorneys have only been allowed at Guantánamo for less than three years... and the judges have not ruled on any matter of substance for more than two and a half of those years... In fact, the only thing the lower courts have been willing to rule on are procedural matters and attorney visit issues... and even these issues have not been ruled on by all of the judges.

As an attorney for my two clients I learned very quickly that the representation was going to involve doing things beyond the typical lawyer stuff... I have now become a quasi-diplomat and a journalist (of sorts…). I have traveled to countries that I hoped might be sympathetic to the plight of my two clients… I have met with representatives from countries near and far and I have asked these representatives to help my clients....even though they do not want to help my country.... And I have taken on this new career of journalism to help spread the word about what is going on both inside and outside Guantánamo, as it relates to these men who have been held without charge for more than five years.

So the bottom line is that the court process has been at a standstill almost since attorneys have been allowed in the door. If some men have in fact given up on their attorneys or on our legal system it would not be surprising to me (although I personally believe the number is quite small based on my frequent conversations with the other attorneys). But this is a frustrating process and although I never had much hope from the legislative side while the Republicans were in control I do admit that I had a faith in our judicial system that I no longer hold. At one time our judicial system was such that people around the world looked at it in envy. I can only imagine that when word came to these men who were languishing at Guantánamo that they were finally going to have attorneys and could challenge their imprisonment in court, that many got their hopes up that justice was just around the corner. Now we know that if justice is around the next corner it is a very long block.

So yes, on occasion our clients, who are now sitting in solitary confinement and quickly going insane..., sometimes get upset at us and our system of law... but it doesn't last long because they know that for now anyway, we are their life line.

I head back to Guantánamo on Monday. It takes a full day to get there and a full day to get back. I will spend three days with my two clients. I will tell them everything I have been doing these last two months since my last visit (and I have been doing a lot). As always I tell my clients the good news and the bad news... and as usual there is very little in the way of good news. My clients will be frustrated, as well they should be. I share their frustration. But the other Guantánamo attorneys and I are doing our best and we have been fighting against the odds and our clients know this. And so they wait, and hope.