Wednesday, March 12, 2008
Mother Jones on another innocent detainee
Tuesday, March 11, 2008
SUPPLEMENTAL MEMORANDUM FILED WITH JUDGE BATES 3.7.08
Monday, March 10, 2008
Yes, I think it is fair to say I am Mad and I will not take it any longer
however...
I do not know why I have to beg the courts of the United States of America to provide life sustaining medical care to a man we are holding in our gulag...
but beg I continue to do...
and of course I will continue until his dying breath...
(which will most likely be sooner rather than later)
I guess it is because I am a lawyer
and remarkably
I still (kind of) believe in the rule of law.....
(perhaps because there is no other reasonable substitute)
today my notes were "cleared" from the military censors
and I can share with you
what I shared with Judge Bates on Friday...
the most up to date medical condition on my client Mr.Al-Ghizzawi:
read it and weep ...
or laugh..
or whatever it is you do when you see how a country ...
my country
(and maybe yours...)
treats its fellow human beings
Is this torture?
Or do we have some new word for this that somehow explains what we are doing?
Do you you feel safer?
.....
So click on the title and read what it is that we have become...
Sunday, March 9, 2008
U.S. Hiding its Malfeasance behind the Cloak of ICRC Visits
(Click on the title to go to the rest of the article....)
Meet me in Guantanamo
Wednesday, March 5, 2008
Arresting the Criminals for Their Crimes Against Our Constitution
The nonbinding, symbolic measure, passed in Brattleboro and Marlboro in a state known for taking liberal positions on national issues, instructs town police to "extradite them to other authorities that may reasonably contend to prosecute them."
Vermont, home to maple syrup and picture-postcard views, is known for its liberal politics.
State lawmakers have passed nonbinding resolutions to end the war in Iraq and impeach Bush and Cheney, and several towns have also passed resolutions of impeachment. None of them have caught on in Washington.
Bush has never visited the state as president, though he has spent vacations at his family compound in nearby Maine.
Roughly 12,000 people live in Brattleboro, located on the Connecticut River in the state's southeastern corner. Nearby Marlboro has a population of roughly 1,000.
(Writing by Andy Sullivan, editing by David Wiessler)
Tuesday, March 4, 2008
FROM ROGER FITCH AND OUR FRIENDS DOWN UNDER
(Click on the title to go to the original)
Roger Fitch Esq • March 4, 2008
Our Man in Washington
If Gitmo closes what becomes of the inmates? Refoulement is the answer, i.e. even worse US prisons in Afghanistan … Lawyers who advised the administration on torture now under (soft) investigation … Bush lawyers at DoJ advising Iraqis on “justice and the rule of law”
First, Col. Morris Davis, the former Chief Prosecutor at Guantánamo, wrote “Unforgivable Behavior, Inadmissible Evidence”, an op-ed about torture, in The New York Times.
Soon after, Davis announced he would be a witness for the defence at Salim Hamdan’s military commission.
Next, Col Davis gave an interview with Ross Tuttle of the Nation in which he tipped on William “Jim” Haynes, the notorious Pentagon general counsel who has been the stationmaster for military commission railroading.
Harper’s Scott Horton has more on these events.
Within days, Haynes – after seven years on the Bush barricades – abruptly quit his job for private life, perhaps to enter corporate law.
The resulting confusion at the Guantánamo commission circus was summarised by Andy Worthington.
Adding to the noise, Mother Jones just published a Torture Playlist comprising the appalling music used at Guantánamo and elsewhere to “prolong capture shock and drown out screams”.
* * *
All this has led to renewed talk of closing Guantánamo, bolstered by a manifesto from many of the world’s leading legal professional bodies, but not the American Bar Association, which now seems minded to collaborate with the commissions.
Yet if Gitmo closed, what would become of the inmates? One answer, of course, is repatriation, or, as also happens, refoulement – the internationally forbidden practice of forcibly returning refugees or prisoners to countries where they are in danger of mistreatment or death.
Literally, refoulement is “driving back”. Recently, however, we have learned of a practice that could be called “circular cycling”.
Pol-i-Charkhi is a former Russian prison. Eric Lewis (pic) is a lawyer for one of the Guantanameros who was sent to this supposedly “Afghan” prison, and he’s written in Slate about P-i-C and its new “national defence” wing built by the US government and staffed by US jailers and interrogators.
Joanne Mariner has also written about the P-i-C wing, called the Afghan National Detention Facility (ANDF).
The notorious US prison at Bagram Air Base in Afghanistan could be an additional destination for “released” Gitmo inmates. It’s been a dumping ground for prisoners since 2004, when the US stopped sending detainees to Guantánamo.
It was Bagram where, in 2002, US soldiers beat to death two Afghan prisoners, including the innocent taxi driver Dilawar whose story is told in this year’s Oscar-winning documentary, Taxi to the Dark Side.
The International Justice Network, an offshoot of the Center for Constitutional Rights, is fighting for the release of all civilians in Bagram, some of whom have filed habeas actions in Washington, as the Legal Times reports.
After years of buzz about Bagram and its abuses, The New York Times has lately decided to report on the problem.
* * *
You may recall that Attorney General Michael Mukasey told Congress he could not investigate government officials who had “harshly interrogated” prisoners in the “war on terror” as his department’s Office of Legal Counsel had issued opinions purporting to bless waterboarding and other practices as legal.
Harper’s blogger Scott Horton was quick to point out that, in that case, the real objects of investigation should be the lawyers who gave the torture advice.
According to Slate’s Emily Bazelon (pic), OPR is the wrong watchdog for an investigation: it has neither bark nor bite.
* * *
More motions have been filed in the Omar Khadr military commission, including two that deal with the failure of the US to comply with the fair trial requirements of the Geneva Conventions’ Common Article Three – a specific requirement of the Supreme Court in the Hamdan case – and with the Bush administration’s bizarre claim that killing US soldiers in a war is somehow murder in violation of the law of war.
The Miami Herald’s Carol Rosenberg is one of the few journalists to examine the Pentagon’s expansive definition of war and war crimes.
As for the “murder” charge, a new law review article by David Glazier of Loyola University (LA) points out:
“The flaw in the US approach is that it wants to have it both ways, treating its adversaries as being both subject to being killed wherever found like traditional combatants, yet also denied legal authority to fight, as are non-combatants. If upheld, Khadr would have the legal status of a deer during hunting season – fair game for coalition forces to kill at will yet possessing no right to fight back.”
Moreover, Glazier says:
“By electing to conduct military commission trials failing to meet international due process standards, the government places participants, including judges, prosecutors, trial panel members, and those involved with post-trial review at risk of subsequent prosecution for war crimes themselves. Although the actual likelihood of such prosecution may be remote, it provides another basis on which the tribunals may be criticized and any remaining moral high ground surrendered.”
* * *
None of this, of course, cramps the style of the Bush Gang. Without a trace of irony, the Bush lawyers at DoJ are solemnly advising the Iraqis on “justice” and the “rule of law”.
Meanwhile, the Justice Department is planning a spring seminar on Investigating and Prosecuting Human Rights Violators in the United States.
Bookings should be heavy: it could prove a useful tool for aspiring prosecutors in a new administration.
Sunday, March 2, 2008
The Hippocratic Oath Dies in Gitmo
In the fall of 2006, Dr. Jürg Reichen, a respected liver specialist at the University of Bern in Switzerland, filed an affidavit in which he testified that, based on the symptoms described by Al-Ghizzawi and based on my own observations of Al-Ghizzawi, it seemed likely that he was suffering from hepatitis B and perhaps liver cancer. Reichen would have been able to make a more conclusive diagnosis with my client’s medical records, but the government has refused to turn them over.....
To read the rest of this article click on the title....
Thursday, February 28, 2008
Reply brief on medical records and treatment
I will update everyone on Mr. Al-Ghizzawi's health when my notes clear. Hats off to Seth at the talking dog (http://thetalkingdog.com/) for his edits and insight.
Click on the title to read the reply.
Thursday, February 21, 2008
AL-GHIZZAWI AND A PERSONAL CALL FOR ACT ION (updated)
Many of you have asked me for an update after that horrible news that Al-Ghizzawi was told by a doctor at the base that he has AIDS. I had a Reply due today in the District Court in DC and I have spent the week focusing on that document. It is now filed and I am waiting for "clearance" by the government before I can post it.
Immediately after I received Al-Ghizzawi's letter I sent an email to the government attorney who refused to tell me whether or not the report was correct. I filed with the Supreme Court but Chief Justice Roberts denied my emergency motion... I still had no word from the Government on the AIDS report... I filed back in the District Court (where this battle for medical treatment began more than 18 months ago). District Court Judge Bates ordered the government to respond by February 15th and asked them to update the Court on Al-Ghizzawi's medical condition. Finally in a typically snide response the government admitted that Al-Ghizzawi does not in fact have AIDS (the fact that the governmen waited this long to admit the truth...if it is the truth... only convinces me that this was a psychological game being played on Al-Ghizzawi... ) but anyway if it is true the good news is that Al-Ghizzawi does not have AIDS.
I say "if it is true" because what came out in the governments response is the fact that they have admitted in this same response that they have known for 18 months that Al-Ghizzawi's liver condition (from hepatitis B) is worsening... perhaps dramatically (they will never say anything directly) and they have not treated him... The affidavit makes clear that the medical staff at guantanamo does not have a clue how to diagnose or treat hepatitis and liver damage.... at the cost of Al-Ghizzawi's health.
Soon I will be able to post my response and even though much of it is legalize and many of you are not lawyers.... you can figure it out.
And now it is time for Judge Bates to understand that many people are concerned with Al-Ghizzawi's health. Will you write him?
Please keep your letters polite and to the point... but let him know that this is not just about one person.... but about the dignity of a nation of people who care about what is being done in our name... and how this reflects on our nation as a whole... And if you are so inclined to write please do it soon... all of the documents are in this very capable judge's hands as of right now.... and I am off on Monday to visit with Al-Ghizzawi for for two days and how nice it would be to tell him that there was a groundswell of support for his cause by the people of the world.
The Honorable John D. Bates
United States District Court Judge
U.S. District Court for the District of Columbia
E. Barrett Prettyman U.S. Courthouse
333 Constitution Avenue, Northwest
Washington, DC 20001
(202) 354-3433 fax)
A WORD ABOUT OBAMA
Obama has potential and of course I will vote for him if he is the democratic candidate butObama is NOT the poster child for doing the right thing for the men at Guantanamo. Let me start out by saying that I am from Illinois and when he ran for senate I worked on his behalf… it was exciting when he won that hotly contested senate seat… and then he went to the senate...
His very first vote was for Condi Rice and it went down hill from there… He later voted for either Roberts or Alito (for the Supreme Court) and the outcry from his constituents seemed to give him pause on the other ….
Most importantly he voted for the Detainee Treatment Act (DTA)…. That was the first attempt by congress to do away with habeas corpus...
The list goes on. His official mentor was Liebermann….until Liebermann lost the democratic nomination for his own senate seat.
I met up with Obama at a luncheon/fundraiser in Chicago in the late spring of 2006 (before he decided to run for president) I asked him if he heard a deep sigh coming from the people of Illinois every time he voted… He looked at me in surprise and I started ticking off the things he voted for… and against…. that were very disappointing… (I remembered many of them at that time..)
When I got to the DTA I said to him “I can’t believe that you, as a civil rights attorney yourself, would vote to take away the writ of habeas corpus”and his unfortunate response was “it was going to pass anyway”… I was quite shocked that he made that statement and asked him if that was his "new standard" ... anyway the conversation went downhill from there (ok maybe it wasn’t exactly uphill at any point…)
We all vote need to vote our conscience …. Or, if nothing else... pragmatically….
ButObama should not be held up to what he isn’t and he should not be portrayed as some kind of hero for the gitmo detainees…
by the way Obama did not even bother to show up for the ban on waterboarding a week ago….
Best regards,
Candace
FROM ROGER FITCH AND OUR FRIENDS DOWN UNDER
Roger Fitch Esq • February 21, 2008
Our Man in Washington
“Guantanamo Six” military commission trial is the opening shot in Republican election year strategy … Yet there’s a problem – most of the alleged “war crimes” occurred before there was a war … Administration’s torture definition finds its roots in health benefit policy
Harper’s blogger Scott Horton has observed that torture is the new litmus test for Bush administration officials:
“If you’re prepared to hedge on whether waterboarding is torture, then you might be counted upon to do anything.”
How else to explain the recent behaviour of leading figures in the government, e.g. the Justice Department’s Michael Mukasey and Stephen Bradbury, the CIA’s Gen. Michael Hayden, intelligence chief Adm. Michael McConnell, Homeland Security’s Michael Chertoff, the State Department’s John Negroponte, the Pentagon’s Gen. Thomas Hartmann.
No sooner had the Attorney General cleared the way for water torture to be classified legal and continued, than General Hayden chimed in with an admission that “waterboarding” had happened, while clearly lying about the number of times.
The very next day, the White House announced it was official policy, as Dan Froomkin reports.
Mukasey then added that in any case, if the Justice Department’s Office of Legal Counsel had once said it was “legal”, he couldn’t investigate it.
Next, the acting head of the OLC, Bradbury, told Congress that, while waterboarding was legal in 2005, it might not be now, but don’t worry, our version of water torture is different. Others disagreed.
As former OLC man Marty Lederman noted, Bradbury’s argument seemed to be, “At least we’re not as barbaric as the Spanish Inquisition”.
One historian claimed it was precisely the same.
According to Slate’s Dahlia Lithwick, it’s all part of a plan.
Vincent Warren of the Center for Constitutional Rights, which represents hundreds of Guantanamo prisoners, summed it up the best:
“At first, they said that they didn’t torture, which we know was a lie. And then they said that they didn’t waterboard, which we know is a lie. Now they’re saying that they do waterboard, but it’s not clear that waterboarding was torture. And now they’re saying it may be torture, but it might not have been torture under the rules a couple of years ago. What they’re trying to do, I believe, is set up a situation where they use the legal framework that they used at the time to be able to avoid a legal classification of waterboarding as torture currently.”
The provocative we tortured and we’d do it again stance seems to have been the opening shot in the Republican election year strategy: a military tribunal at Guantanamo showcasing “high value” detainees, some of whom are known to have been tortured.
* * *
As we know, the Bush administration does nothing extralegal by halves. The “Guantanamo Six” are charged with plotting September 11 and various earlier offences against US lives and property around the world, dating back to 1996.
A list of the 2,973 people killed on September 11 fills 67 pages of the Pentagon’s 90 page charge sheet.
There were 169 “overt acts” constituting the “conspiracy” and other “war crimes”. Of these, only five occurred after September 11 and consisted of such grave crimes as, “recorded many news stories of the attacks for future use in propaganda films” and exulting in their success.
This unseemly claim of credit, after 9/11, for crimes that began 12 years ago, has been transmuted by Pentagon lawyers into crimes against the law of war. Yet there’s a problem.
In the Supreme Court’s Hamdan decision (2006), the plurality said that, for a military tribunal to prosecute war crimes, the acts had to occur after war began, i.e. after September 11:
“Among the preconditions for such a tribunal’s exercise of jurisdiction are, inter alia, that it must be limited to trying offenses committed within the convening commander’s field of command, i.e., within the theater of war, and that the offense charged must have been committed during, not before or after, the war. Here, Hamdan is not alleged to have committed any overt act in a theater of war or on any specified date after September 11, 2001.”
Although the context in Hamdan did not involve an interpretation of the Military Commissions Act, it’s hard to see how a war crime can be committed without there being a war.
No doubt the Bush lawyers will claim that a discrete, pre-9/11 “war on terror” existed.
The charges alleged against the Guantanamo Six all purport to be “war crimes”, as described by the MCA, but only a few – if occurring in a theatre of war – could qualify as war crimes under international law.
Moreover, it’s amazing that the Bush administration believes it can prosecute men it has admitted torturing, e.g. Khalid Sheikh Mohammed.
One stratagem, to send in a “clean team”, has met with derision.
Another defendant, Mohammad Al-Qahtani, is also known to have been tortured, and the Pentagon’s revolting 83-page log of his interrogation is in the public domain.
In fact, in Al-Qahtani’s case, the personal, hands-on involvement of Donald Rumsfeld and the Pentagon General Counsel, William Haynes, is well-established (see my post of August 3, 2006).
* * *
It’s interesting to reflect that the justification of torture began with an August 2002 memo to Alberto Gonzales, penned by John Yoo for Jay Bybee, the then head of OLC.
Yoo found that the infliction of severe physical pain, unless “of an intensity akin to that which accompanies serious physical injury such as death or organ failure”, did not violate 18 USC 2340, the Torture Statute.
Rarely mentioned is the source of that definition. As Yoo noted, it had appeared in US laws “defining an emergency medical condition for the purpose of providing health benefits”.
According to Yoo:
“Although these statutes address a substantially different subject from Section 2340, they are helpful for understanding what constitutes severe physical pain. They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent impairment of a significant body function.”
See? It makes perfect sense.
And what happened to the lawyers?
Jay Bybee was appointed to the 9th Circuit Court of Appeals and John Yoo returned to a tenured professorship at the Berkeley Law School.
Gonzales, at least, is out of work.
Thursday, February 14, 2008
Legislative Branch Passes Bill To Ban Torture (Bush Will Veto)
The bill passed the Senate 51 to 45, which makes it unlikely to over ride the veto. Presidential candidate John McCain voted against the bill. So much for his anti-torture stance.
According to Sen. Charles Schumer "If the president vetoes the intelligence authorization, he will be voting in favor of waterboarding, plain and simple - no ands, ifs or buts."
Of course that should come as no surprise since the President recently admitting to authorizing the technique and even reserving the right to order water boarding in the future.
Where in the Constitution does it give the President the power to break our laws and torture people?... maybe it is in a signing statement....
Friday, February 8, 2008
UPDATE ON EMERGENCY MOTION
We shall see.....
From Roger Fitch and our Friends Down Under
Roger Fitch Esq • February 8, 2008
Our Man in Washington
The Attorney General says the US can torture if it likes … The proposed American Freedom Agenda Act says the US can kidnap if it likes … Over at Guantanamo smart new portable court rooms have been installed … Pentagon bunglers mistakenly hand over “secret” evidence to the visiting press
The new Attorney General has finally given his views on the water cure. In testimony before the Senate, Michael Mukasey broadly implied that “waterboarding” is legal, and could be used again.
No senator thought to ask why, in that case, the US had tried and imprisoned Japanese soldiers and American GIs for using the same practice (see my post of September 22).
As Salon’s Glenn Greenwald sees it, Michael Mukasey showed himself before the Senate to be “ideologically, a clone of John Yoo and David Addington.”
Mukasey is also blocking an investigation into the crimes of his predecessor, Alberto Gonzales, according to the head of the Office of Special Counsel, Scott Bloch.
Meanwhile, Bush and his AG are pressing ahead with the nomination of the odious Stephen Bradbury as the Assistant Attorney General for Legal Counsel.
Bradbury (pic) “approved” waterboarding in a memorandum written in 2005 when he was acting head of the Office of Legal Counsel.
* * *
Although Mukasey says the CIA may “coerce” if it likes, the agency doesn’t really have the proper skills to do it, according to the Washington Independent.
Moreover, astute CIA officers can foresee a Department of Justice that isn’t run by Republican Party hacks or led by a loyal footsoldier in the neo-con revolution.
Perhaps that explains why CIA operatives are stocking up on professional liability insurance to protect against the legal costs associated with investigations and defending civil or criminal charges.
One policyholder is former CIA capo Jose Rodriguez, the designated scapegoat in the “torture tape” destruction scandal.
For extra insurance, the CIA has imposed new restrictions on its Inspector General.
* * *
Last year I wrote about George Bush’s practice of issuing imperial edicts under his assumed royal prerogatives. I called them “Bushwahs” (see my post of September 4).
A variation of the Bushwah is the notorious “signing statement”. That’s where, rather than actually vetoing an Act of Congress, as the Constitution provides, our sovereign simply signs the Bill and then adds a message that he has no intention of enforcing designated parts of it.
As in the case of so much that Mr Bush does, this is not exactly legal and, in fact, legislation specifically enabling line-item vetoes was ruled unconstitutional by the Supreme Court during Bill Clinton’s term.
Bush’s “administrative” line-item vetoes are not unconstitutional – they are simply void – but they can be quite revealing of the Emperor’s pretended powers.
Take the new Defence Act. It contains provisions inserted by Congress that no funds can be spent to establish permanent military bases in Iraq, or to exercise control of Iraqi oil.
The Act also mandates a commission to investigate military contract fraud, provides new protections for whistle-blowers of such fraud, and requires the president to explain in writing when stonewalling Senate document subpoenas.
Mr Bush rejected them all, but only Charlie Savage of the Boston Globe picked up his signing statements.
The Washington Post’s Dan Froomkin has more.
One congressional response to Bush’s “statements” is a proposed American Freedom Agenda Act 2007.
These days, comically patriotic titles are de rigueur.
There are good things in the Bill. The Military Commissions Act is repealed, and habeas corpus restored.
There is a provision that:
“No civilian or military tribunal shall admit as evidence statements extracted from the defendant by torture or coercion [my emphasis].”
Presidential signing statements may be challenged in court.
Then, there is this:
“SEC. 7. KIDNAPPING, DETENTIONS, AND TORTURE ABROAD. No officer or agent of the United States shall kidnap, imprison, or torture any person abroad based solely on the President’s belief that the subject of the kidnapping, imprisonment, or torture is a criminal or enemy combatant; provided that kidnapping shall be permitted if undertaken with the intent of bringing the kidnapped person for prosecution or interrogation to gather intelligence before a tribunal that meets international standards of fairness and due process. A knowing violation of this section shall be punished as a felony punishable by a fine or imprisonment of up to two years.” (Emphases added.)
No one is safe.
* * *
There was an interesting new development for “enemy combatants” at the beginning of February, with the DC Court of Appeals issuing its en banc decision in the Bismullah case.
The full court maintained the wider scope of its evidentiary review (under the Detainee Treatment Act) of combat status determinations.
The Supreme Court had previously indicated that the Court of Appeal’s final decision would inform its own decision in the important pending Guantanamo detainee case, Boumediene-Al Odah.
The Circuit Court divided mostly on party lines, although Chief Judge Douglas Ginsburg (pic) sided with the Democrat appointees in declining to overrule the decision of the three-judge panel of which he was a part.
Meanwhile, the military commissions of Omar Khadr and Salim Hamdan resumed this week.
When the press arrived at Guantanamo, the Pentagon was showing off its wonderful new portable courts which, the Miami Herald gushed, “can be dismantled and shipped back stateside once trials are done”.
Yes, or shipped anywhere else in the world where summary show trials are planned.
Things got off to a shaky start when military publicists mistakenly handed the press corps secret evidence that might exculpate Khadr.
Unhelpfully for the Pentagon, the transcript of a US soldier’s testimony referred to another plausible grenade-lobber, and to an already wounded Khadr being shot twice again – in the back.
The motions and briefs are posted on the Pentagon website.
The argument on another motion, on Khadr’s status as a child soldier at the time of the “offences”, took a curious turn.
As I reported in my last post, the DC Court of Appeals has just ruled that Guantanamo detainees are not “persons” within the meaning of US law.
It seems the Department of Justice prosecutor takes a different view.
Responding to the argument that Congress could not have intended children to be subject to trial by military commission, the prosecutor claimed that it was enough that Khadr was a “person”, and he added, that means “anyone born alive”.
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