Odds & Ends

• New information comes to light on the role of psychologists in U.S. interrogations.
  
• Yemen gets educated about Guantánamo.
  
• Omar Khadr, detained by the U.S. at the age of 15, is losing hope.
  
• Presidential candidate, John Edwards, calls for the closure of Guantánamo and and end to "war on terror" rhetoric.

  The war on terror is a slogan designed only for politics, not a strategy to make America safe .... It's a bumper sticker, not a plan. It has damaged our alliances and weakened our standing in the world. As a political frame, it's been used to justify everything from the Iraq War to Guantanamo to illegal spying on the American people.

Solidarity Among Journalists

Sami al-Hajj, the Sudanese cameraman held in Guantánanmo, has called on the captors of Alan Johnston to release the BBC reporter. Johnston was captured by a militant group in Gaza two months ago. Said al-Hajj: "while the United States has kidnapped me and held me for years on end, this is not a lesson that Muslims should copy."

The United States styles itself as a champion of liberty and democracy, but al-Hajj's noble defense of Johnston must make us wonder what kind of example the U.S. is now setting for the world.

More from Reuters.

Desmond Tutu on Guantánamo

Bishop Tutu, addressing supporters of Omar Deghayes:

Tell them injustice and oppression won't have the last word - that one day they will be vindicated...

In South Africa I opposed detention without trial and I have no reason to change.

The Argus: "Tutu compares horror of Guantanamo to apartheid era"

Amnesty International on GTMO conditions:

Last month, Amnesty International issued a comprehensive report on conditions at the Guantánamo Bay prison camp. (Click here for a PDF version.)

In addition to the highlighting the profound injustice of indefinite detention and physical abuse, the report also makes note of the declining mental health of Guantánamo's inmates and the psychological damage caused by isolation.

The report's appendix (which we have posted here) outlines exactly how the United States can undo the damage caused by Guantánamo Bay: fair trials and an end to unlawful detentions. The appendix also stresses that the right of victims to seek reparations in U.S. courts should not be limited and that unlawfully detained prisoners should be speedily transferred to a safe location of their choosing and offered the option of asylum in the U.S.

Interview with Tina Foster

The Talking Dog has another excellent interview, this time with Tina Foster who represented Guantánamo prisoners pro bono at Clifford Chance and later at CCR.

Foster is now the director of the International Justice Network. She has filed a habeas petition for a Yemeni held at the Bagram Air Base, citing his rights established by Rasul. The government has moved to dismiss, arguing that the Military Commissions Act strips the courts of any jurisdiction. However, since nobody at Bagram has ever been designated an "enemy combatant" through a Guantánamo-style Combatant Status Review Tribunal process, Foster can maintain that the MCA does not apply.

But now...

almost as if by magic, the military announced, two days before a court deadline on this issue, that it has established new CSRT-like proceedings (none of which involve the detainee even present, of course), but that this somehow satisfies the prerequisites for depriving the court of jurisdiction.

READ MORE

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.