Supreme Court Update

The Solicitor General was granted an extension to December 26th, 2007.... to respond to Mr. Al-Ghizzawi's original Habeas petition...(sigh)

Guatanamo Myth No. 3 (updated)

The United States Government has been claiming for years that the reason so many of the men slated for release have not left Guantanamo is the fault of the home countries for not working with the U.S. to repatriate the men and/or the fault of the rest of the world for not stepping in and taking those men who cannot go back to their home countries. We (habeas counsel) knew that this was false as many of us have contacted countries willing to take the men and some of those countries have tried to get the State Department to release the men to them. Unfortunately the State Department stalls and ignores... the fault clearly lies with our own inept State Department. Finally we now have a country that is willing to talk about the frustration in trying to work with the State Department to get their men home. Attorney William Teesdale describes his conversation with the Deputy Ambassador to the U.S. from Sudan in his affidavit filed with the DC Circuit Court of Appeals last week. (click on the title to see his affidavit...)
Specifically Teesdale states that the Sudanese government has been trying to repatriate its two citizens at Guantanamo since November 2005 and despite the fact that the men have been cleared for release since that time ...our State Department is just a little too busy to actually get around to finalizing the arrangements and sending them home....

Gonzo sets up legal defense fund

There are few things to cheer about in the legal world today... with our constitution being thrown out the window and at least some of our judiciary looking the other way. But today there is something to smile about... our former attorney general has to raise money for his defense fund... and he will have to be careful where he travels when he leaves the country or he could be slapped with charges for his war crimes...
I wonder if old Gonzo is starting to think twice about whether torture should be an American value?

STEPHEN ABRAHAM HAS MORE TO SAY

(click on the title and go directly to the upload on scotusblog)

Abraham's second affidavit focuses on the fact that the if you are going to create an organization that will have a primarily legal responsibility, require access to vast amounts of intelligence, be able to coordinate with national and international agencies, hold hearings, and report findings, many of which will require international coordiation...

then why do you create an organization with:

... no direct connections to the intelligence organizations
... no direct connections to foreign agencies or activities
... no budget for coordination or foreign travel (witnesses, etc.)
... no integrated expertise in matters of intelligence coordination
... no high level/order intelligence information architecture
... a timeline for performance that all but precludes a deliberately paced proceeding
... an engineer as the commander
... an aviator/facilities engineer as the second in command
... no dedicated experienced intelligence staff
... no minimum standards of subject matter competence or experience for staff members
... a 2-week training program (yeah, right, like that really happened...)

unless you have bought into the law of intended consequences.

Thank you Stephen for blowing the whistle on these liars at the pentagon and state department.

Guantanamo Manual Leaked (updated)

A copy of the Guantanamo Bay "camp delta standard operating procedures" was linked on wikileaks.org late yesterday. (click on the above link for the storey on Wired).... The link was down for a while today but it is back up and working now. Download it while you can... it is an interesting read. I especially like the fact that the library books should not be left on the work tables in the blocks because they could be damaged by the weather... screw the detainees... save the books..

FROM ROGER FITCH AND OUR FRIENDS AT JUSTINIAN

(Click on title to go directly to Juntinian)

Roger Fitch Esq • November 8, 2007

Our Man in Washington

The Bush administration has lost its holy Land foundation case in Dallas, making a trifecta for high-profile terror cases where the government has failed to secure convictions from sceptical American juries.

Not a single guilty verdict was returned by the Texan jury on the 197 charges relating to the “financing of terrorism”.

The media response was not kind, in either Slate or the local papers.

Georgetown law prof David Cole has perhaps the best explanation for the government’s losses in such “terror” cases – it has no evidence.

For the Arab News, it was understandably an Israeli trial conducted on American soil.

The leading Egyptian weekly, Al-Ahram, was concerned that the US District Court judge, Joe Fish, had allowed the anonymous testimony (rejected by the jurors) of Israeli agents .

In fact, the US does seem to be prosecuting mainly charities operated by Palestinian-Americans or for the benefit of Palestinians on the West Bank and in Gaza.

The government’s tortured reasoning is that the Palestinian charities, to which the contributions of Americans flow, indirectly “aid” terror, even when providing purely humanitarian assistance, as they relieve pressure on Hamas to provide such services.

The jury in the Holy Land Foundation case evidently found this too big a stretch. Clearly the government needs to list the allegedly Hamas controlled charities themselves as terrorist groups if it wants to criminalise contributions to them, and it hasn’t done so.

Another long-standing case involving charitable contributions has been resolved in favour of the defendants.

Within days of the Holy Land verdict, a 20-year ordeal for a group of Palestinians in Los Angeles ended with the government admitting defeat in its efforts to deport legal residents on what proved spurious terror assistance grounds.

The New York Times called it a shabby prosecution.

* * *

Retired federal judge Michael Mukasey (pic), George Bush’s nominee for Attorney General, has fronted confirmation hearings before the Senate Judiciary Committee.

The judge couldn’t bring himself to say that waterboarding was torture, even after the senators wrote him a letter asking him to explain earlier testimony.

Mukasey’s answer was more of the same, apparently because he didn’t want to put CIA people in danger of war crimes prosecutions.

It was exactly what Columbia law prof and Harper's blogger Scott Horton expected, in light of undertakings Mukasey had previously given to right-wing Republicans.

In the end, two Democrat senators rolled-over and crossed the aisle to vote for Mukasey. The Senate Judiciary Committee has endorsed his nomination and it now goes to the full Senate.

Meanwhile, the legal problems of the man Mukasey is likely to replace, Alberto Gonzales, may just be beginning, according to Slate’s Dahlia Lithwick – including possible prosecution for lying under oath.

* * *

None of this seems to bother General Michael Hayden (pic), the head of the CIA.

He continues to claim that the “extraordinary rendition” and “enhanced interrogation”, made possible by Gonzales, work like a charm, with some 9,000 bits of intelligence extracted so far from a mere 100 or so victims of the troubling techniques, some of whom received the “water cure”.

The notion that waterboarding is only simulated drowning, however, is not accepted by one government adviser, Malcolm Nance, a former instructor in the US military’s “SERE” (Survival, Evasion, Resistance and Escape) training program, who speaks from first hand experience.

The Independent has the story, including what happens to a waterboarded victim.

How can waterboarding suddenly be OK? When George Bush became president it had been officially illegal for over 100 years, ever since another Republican president, Teddy Roosevelt, ordered a US general court-martialled for allowing that and other abuse in the Philippines occupation.

Curiously, it’s just emerged that an official from the Office of Legal Counsel in the Department of Justice was waterboarded, though not on the orders of Gen. Hayden.

You may recall that the infamous 2002 “torture memo” by OLC head Jay Bybee (now a Court of Appeals judge) was withdrawn by his successor Jack Goldsmith (pic) in 2004 after it became public.

Daniel Levin, Goldsmith’s successor, wrote a replacement memo calling waterboarding “abhorrent”, but before doing so had himself subjected to the treatment at a military base. It was enough to convince him, it seems.

Levin was writing another memo restricting the use of “enhanced interrogation techniques” when Alberto Gonzales, then White House counsel, became Attorney General.

The result? He was forced out of the department.

* * *

Unfortunately torture is becoming passé these days and accused torturers get only cursory mention in the press.

When torture charges were recently laid in Paris against Donald Rumsfeld (pic), in town to give a speech, only a few news agencies such as the Associated Press even noticed.

This was apparently the sixth time such charges have been brought against Rumsfeld. Deutsche Welle has more on the lawsuit and here is the press release from the Center for Constitutional Rights, one of the plaintiffs.

Luckily for the former US Defence Secretary, now a Stanford “Fellow”, the venue for the speech had a connecting door to the US embassy and the wily fugitive was whisked away by officials to Germany.

In any case, according to Jurist, Rumsfeld will have to watch his future travel arrangements.

Rummy has also been put in the frame by a new American Civil Liberties Union book, Administration of Torture, gleaned from responses to the ACLU’s FOI requests.

It discloses that Major General Michael Dunlavey, a lawyer and General Geoffrey Miller’s predecessor as intelligence officer at Guantanamo, reported straight to the top.

It was already known that Dunlavey had a hand in the dismissal of the first Gitmo prison commandant, General Rick Baccus (pic), for being too nice to detainees.

The ACLU book reveals more: Gen Dunlavey told Army officers investigating detainee abuse that he took his orders at Guantanamo from George W. Bush, as well as Donald Rumsfeld.

Dunlavey, who is now again a family court judge in Pennsylvania, is a defendant, with Rumsfeld, in a civil damages case for torture, filed in 2004 by David Hicks’ habeas co-petitioners, Rasul and Iqbal.

* * *

The former Guantanamo Chief Prosecutor, Colonel “Moe” Davis is still talking, this time to the Wall Street Journal's Jess Bravin, and it seems Defence general counsel William Haynes is being fingered for directly meddling in the military commissions.

This would not be surprising, as Haynes interfered in some of the interrogations which produced “evidence” that might be used in the MCs.

As I noted in my post of August 3, 2006, when Haynes (pic) previously testified to the Senate during his unsuccessful hearings for confirmation as a Court of Appeals judge, he openly admitted having taken a hands-on role (with Rumsfeld) in the interrogation of the only Gitmo detainee for whom we have a torture log, the so-called 20th 9/11 hijacker, Mohammed Al Qatani.

In support of Col Davis, the WSJ has copies of the orders from Deputy Defence Secretary Gordon English to Davis and to his superior Gen Hartmann.

These orders show ultimate political control of the military commission proceedings lies with the Pentagon general counsel.

Col Davis told the WSJ that the Hicks case and two others were hastily brought forward against his wish even though the regulations and procedures (e.g. appeals) weren’t in place.

A member of the Guantanamo Bay Bar, Mark Falkoff, observes that politics rather than principle governs what goes on at prison.

Davis may also have spoken to blogger Scott Horton, who has been talking to disaffected military officers again.

This time the subject was David Hicks and the deal that the Australian Prime Minister cut with Vice President Cheney to get Hicks out of the Australian election spotlight.

Horton has also talked to other whistle-blowers from Gitmo about Defence general counsel Haynes:

“Haynes is generally considered one of the Rumsfeld Pentagon officials most likely to face indictment and prosecution for war crimes because of his direct role in the process leading to Rumsfeld’s approval of torture techniques. Haynes certainly will not be indicted by the Bush Administration, but he probably will run into troubles with one or more American allies in the near future, as soon as he has left his official position. Like his former boss, Haynes will probably have to avoid travel outside of the United States in the future if he wants to keep out of jail. All of this makes his heavy hand on the war crimes prosecution steering wheel more than a bit ironic.”

* * *

As expected, the Bush administration is making various feints about closing or changing Guantanamo in the lead-up to the December 5 Supreme Court hearing of the Boumediene detainee case.

In fact, according to the Independent, the Bush administration is so worried about losing Boumediene that it is planning yet another system of military commissions.

Such an initiative would make more credible the extremely bleak view of the Bush administration set out by the Frenchman Jean-Claude Paye in the September issue of the US journal Monthly Review.

In a New York Times Op-Ed, another French writer, Francois Furstenberg, has dared to use the word “terror” in comparing the policies of Bush with those of Robespierre (pic) and the Jacobin Club in 1792.

As Furstenberg explains:

“Jacobins expanded the government’s police powers at the expense of civil liberties, endowing the state with the power to detain, interrogate and imprison suspects without due process. Policies like the mass warrantless searches undertaken in 1792 … were justified, according to Danton, the Jacobin leader, ‘when the homeland is in danger’.”

So, says Furstenberg, when George Bush says, “We must not let foreign enemies use the forums of liberty to destroy liberty itself”, he is only echoing Saint-Just, who said, “No liberty for the enemies of liberty”.

* * *

With each unfolding scandal, the Cheney-Bush Gang and their lawyers become more brazen.

Laws continue to be broken. “Political” prosecutions keep happening. Shameful defences are put forward. Corruption and payoffs abound and cover-ups flourish, while whistle-blowers are ruthlessly silenced.

At this very moment, lists of loyal Bushies needing pardons are quite possibly being prepared for signature by il Capo late next year.

At the same time, the Associated Press reports that the more traditional US crime syndicates, the old mob families, are on the wane.

Maybe this could explain why the Bush administration remains so emboldened and arrogant.

They’ve seen off the competition.

Now they’re the only game in town.

14 SAUDI'S RELEASED (Updated)

We had heard that Saudi Arabia was moving to get all of its remaining citizens out of Guantanamo by the end of the year... I have also learned that this is directly related to the death of one of its citizens at Guantanamo in May 2007... that man died of medical neglect... not by "apparent suicide" and the Saudi's have made a concerted effort to get their men out after that "incident". It seems only one of the men, number 14 below, was slated for release.
As to the person who asked why it takes so long for these countries to demand their men back I could only speculate...


1. Fahd Omar Abdulmajeed Al-Omari Al-Shareef - ISN 215

2. Yousef Muhammad Mubarak Al-Jubairi Al-Shehri - ISN 114

3. Fahd Sultan Obaid Al-Osaimi Al-Otaibi - ISN 130, I think (Faha Sultan)

4. Turki Mashoori Zayed Al Jibli Aseeri - ISN 185

5. Sultan Ahmed ibn Al-Dardeer Owaida - ISN 59

6. Nayef Abdullah Ibrahim Al-Nukhailan - ISN 258

7. Abdullah Abdulmueen Al-Wafi Al-Harbi - ISN 262

8. Muhammad Ateeq Owaidh Al-Awfi Al-Harbi - ISN 333

9. Saeed Ali Jabir Al Khaitham Al-Shihri - ISN 372

10. Hani Saeed Muhammad Al Khalf Al-Ghamdi - ISN 438

11. Khalid Saud Abdulrahman Al-Bawardi - ISN 68

12. Murtadha Ali Saeed Moqrim - ISN 187

13.Jabir Hasan Muhammad Al-Jabra Al-Qahtani - ISN 650

14. Zaid Muhammad Saad Al Husain Al-Ghamdi - ISN 50

11 RELEASED (UPDATED...AGAIN)

Details have not been released yet but 11 men were... we are told 8 are Afghani and 3 are Jordanians. When we have the names and ISN's I will post the information.
I don't have all the names yet but here is what I have so far:

To Afghanistan:
Abdul Naseer (ISN 874) cleared for release(Dicky Grigg attorney)
Mohammed QASIM, ISN 955 cleared for release (federal defender)
Fizuallah Rahman, ISN 496 not cleared
Hiztullah Nazrat Yar, ISN 977, cleared for release

Three Reprieve clients sent to Jordan:

Osama Hassan Abu Kabir, ISN 651
Ahmed Hassan Suleiman, ISN 662
Ibrahim Mahdi Zaidan, ISN 761

Another Military Hero?

THE AMAZING THING ABOUT THE MILITARY PEOPLE THAT COME FOREWARD IS THAT THEY ARE TRAINED TO DO THEIR JOB AND OBEY ORDERS ... BUT THEY KNOW THEIR PRIMARY JOB IS TO DEFEND THE CONSTITUTION OF THE UNITED STATES.. SO ONE BY ONE THEY ARE FINDING THEY CANNOT JUST "OBEY ORDERS" THEY MUST DEFEND THE CONSTITUTION, EVEN IF IT MEANS TAKING A STAND AGAINST THEIR SUPERIORS. SO PLEASE READ, OR LISTEN, TO TODAYS STORY ABOUT COLBY VOKEY AND BE PROUD THAT ANOTHER OF OUR BEST HAS COME FOREWARD TO DEFEND OUR CONSTITUTION....

"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)

WATERBOARDING IS TORTURE, TAKE IT FROM ONE WHO KNOWS FIRST HAND

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...

RUMSFELD CHARGED WITH TORTURE...

---

Press release

France/USA

DONALD RUMSFELD CHARGED WITH TORTURE DURING TRIP TO FRANCE

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.

READ THE REST BY CLICKING ON THE TITLE

FROM ROGER FITCH AND OUR FRIENDS DOWN UNDER AT JUSTINIAN

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.

AMNESTY INTERNATIONAL MAKES AN URGENT PLEA FOR MR. AL-GHIZZAWI

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.
Candace

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.

BACKGROUND INFORMATION
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

APPEALS TO:
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

COPIES TO:
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.

SUPREME COURT

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... )

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.