Saturday, March 14, 2009
THE NEW DEFINITION
At this point I am only going to focus on what the Government's position means to my two clients at Guantanamo. It is clear to me that this memorandum was very clearly written to address two separate issues and we should all keep that in mind: the first is what to do about the men who have been held all these long years at Guantanamo and the second is what to do in the future so we never have a Guantanamo again. As they addressed in the memo, the second part will be unveiled in July.
First, and importantly, the term "enemy combatant" has now been dropped by the Obama administration. I take that to mean that neither of my clients are now considered to be "enemy combatants". That is a good thing.
But back to Mr. Al-Ghizzawi and Mr. Razak Ali: Both men were originally determined to be enemy combatants back in 2004 when the Supreme Court ordered that an assessment be made as to whether or not the men were in fact "enemy combatants" (It took two tries for the military to find Al-Ghizzawi an enemy combatant). Razak Ali was found to be an enemy combatant because he was staying in a guesthouse in Pakistan that was raided and amongst the many men staying at that guesthouse was a man that may or may not have been a member of al-Qaeda. There has never been an allegation that Razak Ali even knew the man nevertheless a determination that the man himself is a member of al-qaeda. In laypersons terms he has been held for seven years because of "guilt by association." Al-Ghizzawi was found to be an enemy combatant because he traveled a lot when he was younger (he was a meteorologist for the Government airlines and could travel at a discount) and the military accused him of being a member of an anti Qadaffi organization (which he has steadfastly denied).
The administration is now asking the judges to review the habeas petitions with this definition:
“The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.”
The nuances between this definition and Bush's may not seem clear to the untrained eye but they are important. Under Bush the definition was purposely vague so as to justify holding anyone they wanted to hold. The language is getting tighter and although not perfect most of the men currently held at Guantanamo should be released under this definition because now actual proof of substantial and direct support will be required.
As for my clients: neither has ever been accused of planning or aiding the 9-11 attacks nor have they been accused of being a part of or supporting Taliban or al-Qaeda forces or of being a part of any forces that have committed beligerent acts. In fact, neither has been accused of being involved in any terrorist activity. Up until now they didn't have to be accused of anything specific as it was enough for Bush to allege that they in some vague way "supported" something that Bush did not like....
Let us hope that this is the beginning of the end for Al-Ghizzawi and Razak Ali.
First, and importantly, the term "enemy combatant" has now been dropped by the Obama administration. I take that to mean that neither of my clients are now considered to be "enemy combatants". That is a good thing.
But back to Mr. Al-Ghizzawi and Mr. Razak Ali: Both men were originally determined to be enemy combatants back in 2004 when the Supreme Court ordered that an assessment be made as to whether or not the men were in fact "enemy combatants" (It took two tries for the military to find Al-Ghizzawi an enemy combatant). Razak Ali was found to be an enemy combatant because he was staying in a guesthouse in Pakistan that was raided and amongst the many men staying at that guesthouse was a man that may or may not have been a member of al-Qaeda. There has never been an allegation that Razak Ali even knew the man nevertheless a determination that the man himself is a member of al-qaeda. In laypersons terms he has been held for seven years because of "guilt by association." Al-Ghizzawi was found to be an enemy combatant because he traveled a lot when he was younger (he was a meteorologist for the Government airlines and could travel at a discount) and the military accused him of being a member of an anti Qadaffi organization (which he has steadfastly denied).
The administration is now asking the judges to review the habeas petitions with this definition:
“The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.”
The nuances between this definition and Bush's may not seem clear to the untrained eye but they are important. Under Bush the definition was purposely vague so as to justify holding anyone they wanted to hold. The language is getting tighter and although not perfect most of the men currently held at Guantanamo should be released under this definition because now actual proof of substantial and direct support will be required.
As for my clients: neither has ever been accused of planning or aiding the 9-11 attacks nor have they been accused of being a part of or supporting Taliban or al-Qaeda forces or of being a part of any forces that have committed beligerent acts. In fact, neither has been accused of being involved in any terrorist activity. Up until now they didn't have to be accused of anything specific as it was enough for Bush to allege that they in some vague way "supported" something that Bush did not like....
Let us hope that this is the beginning of the end for Al-Ghizzawi and Razak Ali.
Friday, March 13, 2009
Enemy Combatant
http://www.pegc.us/archive/In_re_Gitmo_II/gov_ec_memo_20090313.pdf
The previous edition (2008.10.22) is here:
http://www.pegc.us/archive/In_re_Gitmo_II/gov_ec_memo_20081022.pdf
Thursday, March 12, 2009
Talking Dog Interviews Terry Holdbrooks, former military cop at Gitmo
Terry Holdbrooks, Jr. served as a military police officer with the rank of Specialist in the United States Army between 2002 and 2005, attached to the 252nd Military Police, and later assigned to the 463rd MP company, a mobile deploying unit, based at Fort Leonard Wood, Missouri. From 2003 to 2004, he was deployed to Guantanamo Bay, where he served as a prison guard.
Thanks to Terry for being willing to speak out about his experience and thanks (of course) to the Talking Dog for another amazing interview.
CLICK ON THE TITLE TO READ THE INTERVIEW.
Thanks to Terry for being willing to speak out about his experience and thanks (of course) to the Talking Dog for another amazing interview.
CLICK ON THE TITLE TO READ THE INTERVIEW.
Wednesday, March 11, 2009
FEELS LIKE OLD TIMES.... UNFORTUNATELY (updated)
UPDATE
As my friend and fellow Habeas attorney David Remes tells us, the Obama government is now using the pendency of the "interagency review" as a basis for moving to stay the habeas cases. (Eric Holder has stated that the interagency review could take "a good portion" of the year Obama gave to close Guantanamo.)
But that is not enough... again from David Remes:
"Going further, the government suggests that if the interagency review team deems a prisoner eligible for release, the prisoner's habeas case is over - even if the prisoner remains in US custody, and however long he may remain in US custody - because the review team has given him the only relief he could have gotten from the court: a determination that he should be released. What the government means (and says) is that, in its view, the court has no power to order the prisoner's release. The court lacks such power, the government says, because the court cannot order his release into the US (the government cites Kiyemba for this) or order the President to release the prisoner to another country (the government, stretching Kiyemba, also cites it for this). (It would appear that the government will defend Kiyemba, a Bush triumph, if the petitioners seek cert.)
Thus, we come full circle. First, the government argued that the courts have no jurisdiction to entertain the prisoners' habeas cases; the Supreme Court shot that argument down in Rasul. Then, the government argued that even if the courts have jurisdiction, the prisoners have no rights. The Court shot that argument down in Boumediene. Now, the Obama DOJ, like the Bush DOJ before it, is arguing that even if the court has jurisdiction, and the prisoner has rights, there's nothing a court can do to enforce those rights, because the president alone controls whether a prisoner shall be released. Of course, a right without a remedy is not a right.
The government also says the case stops even if the prisoner wants to pursue his case to overturn his enemy combatant designation, and even if overturning the designation might make it easier for the prisoner to be released, because the prisoner's "reputational interest" is not enough to support continued jurisdiction.
Finally, the government lies about its position in Al-Marri as to Al-Marri's enemy combatant status. In the Supreme Court, particularly in its reply brief in support of its motion to dismiss as moot or vacate and remand, the government said Al-Marri's enemy combatant status had been revoked; in this filing, it says his enemy combatant status remains intact.
Good show! It feels like old times."
For those of you who do not know David Remes he is another of the habeas counsel that has given up his law practice to work solely on the Guantanamo cases. David represents several of the Yemeni men.
Click on the title to read Scotusblog's take on this and for the link to the governments pleading.
As my friend and fellow Habeas attorney David Remes tells us, the Obama government is now using the pendency of the "interagency review" as a basis for moving to stay the habeas cases. (Eric Holder has stated that the interagency review could take "a good portion" of the year Obama gave to close Guantanamo.)
But that is not enough... again from David Remes:
"Going further, the government suggests that if the interagency review team deems a prisoner eligible for release, the prisoner's habeas case is over - even if the prisoner remains in US custody, and however long he may remain in US custody - because the review team has given him the only relief he could have gotten from the court: a determination that he should be released. What the government means (and says) is that, in its view, the court has no power to order the prisoner's release. The court lacks such power, the government says, because the court cannot order his release into the US (the government cites Kiyemba for this) or order the President to release the prisoner to another country (the government, stretching Kiyemba, also cites it for this). (It would appear that the government will defend Kiyemba, a Bush triumph, if the petitioners seek cert.)
Thus, we come full circle. First, the government argued that the courts have no jurisdiction to entertain the prisoners' habeas cases; the Supreme Court shot that argument down in Rasul. Then, the government argued that even if the courts have jurisdiction, the prisoners have no rights. The Court shot that argument down in Boumediene. Now, the Obama DOJ, like the Bush DOJ before it, is arguing that even if the court has jurisdiction, and the prisoner has rights, there's nothing a court can do to enforce those rights, because the president alone controls whether a prisoner shall be released. Of course, a right without a remedy is not a right.
The government also says the case stops even if the prisoner wants to pursue his case to overturn his enemy combatant designation, and even if overturning the designation might make it easier for the prisoner to be released, because the prisoner's "reputational interest" is not enough to support continued jurisdiction.
Finally, the government lies about its position in Al-Marri as to Al-Marri's enemy combatant status. In the Supreme Court, particularly in its reply brief in support of its motion to dismiss as moot or vacate and remand, the government said Al-Marri's enemy combatant status had been revoked; in this filing, it says his enemy combatant status remains intact.
Good show! It feels like old times."
For those of you who do not know David Remes he is another of the habeas counsel that has given up his law practice to work solely on the Guantanamo cases. David represents several of the Yemeni men.
Click on the title to read Scotusblog's take on this and for the link to the governments pleading.
U.N. REPORT SAYS U.S. BROKE INTERNATIONAL LAW
CLICK ON THE TITLE TO READ MORE:
Perhaps the Obama Administration will listen to these words from the report:
"The United States has indicated that it wants to move forward and turn this dark page in its history, but in other countries this practice or permission of secret detentions — often of people who have been branded as terrorist suspects — is continuing," Scheinin said. "Before a page can be turned, we have to know what's on it, in order to move forward."
Perhaps the Obama Administration will listen to these words from the report:
"The United States has indicated that it wants to move forward and turn this dark page in its history, but in other countries this practice or permission of secret detentions — often of people who have been branded as terrorist suspects — is continuing," Scheinin said. "Before a page can be turned, we have to know what's on it, in order to move forward."
THE MILITARY'S PROPAGANDA MACHINE
As the talking dog has pointed out in his last few blogs the military has gone to great lengths to convince the world that it is holding the masterminds of September 11th. Whether they are or not will be very difficult to ever ascertain because of the military's under handed dealings. This all began several months ago when the military allowed the men to confer together without attorneys, surprise surprise, after that meeting they all decided to fire their attorneys. Then, as the talking dog points out, they submitted a document jointly claiming responsibility for the attacks....hmmm, wonder how they managed to do that without legal counsel?
The military desperately wants a victory here.... even if it means taking advantage of mentally disturbed prisoners who, for what ever reason, are willing to go down in the books at martyrs.
The military desperately wants a victory here.... even if it means taking advantage of mentally disturbed prisoners who, for what ever reason, are willing to go down in the books at martyrs.
Tuesday, March 10, 2009
SEND A BOOK TO GITMO (deadline 3/20/09)
Send a book to Mohammed el Gharani
We would be delighted if you could send one of your favourite books to our client Mohammed el Gharani, in
Mohammed el Gharani was just 14 years old when he was wrongfully imprisoned in Guantánamo.
Despite being ordered to be released by a federal judge, he is still there seven years later - the youngest remaining prisoner taken as a juvenile.
Although Mohammed has spent his school years in a notoriously brutal prison, he loves books - particularly history. He recently told Reprieve attorneys that he is keen to read as much as possible to prepare for his release.
Show your support for Mohammed by sending him your favourite book. We hope that sending many books all at once will:
- support Mohammed at this very difficult time
- remind the officials at Guantánamo of his youth, his innocence and their legal obligation to release him.
How to send a book
1) Choose a book - one of your own, second-hand or new is fine (Mohammed has learned to speak and read English in Guantánamo; he also speaks Arabic)
2) Write one sentence on why you have chosen it
3) Call or email Reprieve to let us know – we will deliver it to Mohammed in
4) Post your book to us at:
‘A Book for Mohammed el Gharani’
ATTN: Samuel Rowley
Bingham McCutchen LLP
We need all books to arrive by Friday March 20, in time for our next Guantánamo visit.
If you can help or need further information, please email laura@reprieve.org.uk or give us a call at +44 20 7353 4640. We will be publishing a list of the books that we take over, as well as who has sent them in and the reasons the specific books have been chosen.
Many thanks, as ever, for your support.
The Convoy
I do not like to go off message (Guantanamo) but sometimes events in the world force you to. This important event really did not get covered in the corporate media so if you are not aware of the convoy to Gaza led by British MP George Galloway then please make yourself aware. Over 200 vehicles traveled from Great Britian, through 9 countries and over 10000 kilometers to bring supplies to the people of Gaza. They arrived yesterday. Click on the title for more.
Monday, March 9, 2009
Sunday, March 8, 2009
Our Nation Unhinged
I have discussed the mechanics of getting to Guantanamo but what I have not mentioned is the many and varied fellow travelers on that small plane from Ft. Lauderdale to the Guantanamo naval base. Usually I can pick out the other habeas counsel and reporters and often we will sit and chat as we wait the two hours before the plane leaves. On one of those flights back in 2007 I met a professor from San Francisco Law School, Peter Jan Honigsberg. We exchanged email addresses and we have kept in contact over the years. Now his book is coming out. I will be writing more about his book after the book is actaully out but click on the title to read more and to order your own copy from Amazon (34% discount!).
Saturday, March 7, 2009
WHEN WILL THEY STOP?
Yesterday I (and every other habeas counsel) received an email for the DOJ telling us that they are going to ask Judge Hogan (the coordinating judge for the Guantanamo litigation) to amend the Protective Order (the rules that guide the litigation) and they were just wondering if we would oppose the change.... sigh.
CLICK ON THE TITLE TO READ THE ACTUAL EMAIL
The latest attempt to interfere with the attorney client relationship that the DOJ is proposing would forbid us from talking with our clients about information that our clients supposedly provided to the government, if we learned about that information from reviewing a classified document... unless of course our clients happened to have mentioned that same information to us in a letter or in a client meeting (of course if our client never mentioned the supposed "information" to us it could very well be that they never uttered those words!) And if we want to discuss with our client something that our client supposedly told the government, but which is in a classified document, the Government would like the procedure to be that we would have to make a written request to the "privilege team" explaining exactly why we need to talk with our client about whatever it is that our client supposedly said, and the "team" will check things out with the "appropriate government agencies" and get back to us....sometime this century. You should also take note that our client's interrogation reports (that is really what they are trying to stop us from using) are ostensibly classified because of other information in the reports that should not see the light of day...names of interrogators etc, that the government just has not gotten around to redacting. We of course cannot mention that type of information with our clients... but now the Government is trying to classify our clients own words so that we cannot verify what the government claims our clients have said.... unless of course the Government gives us permission.
There is more to this, but in a nutshell this tells it all: the DOJ wants everything our clients (supposedly) told the military/government to be considered classified and bar us from talking with our clients about it unless our clients happened to have told us the same thing... the DOJ continues to try to put a strangle hold not only on our communications with our clients but our communications with other habeas counsel.... and the end result of this new proposal is that it would make it even more difficult to prove our client's innocence.
CLICK ON THE TITLE TO READ THE ACTUAL EMAIL
The latest attempt to interfere with the attorney client relationship that the DOJ is proposing would forbid us from talking with our clients about information that our clients supposedly provided to the government, if we learned about that information from reviewing a classified document... unless of course our clients happened to have mentioned that same information to us in a letter or in a client meeting (of course if our client never mentioned the supposed "information" to us it could very well be that they never uttered those words!) And if we want to discuss with our client something that our client supposedly told the government, but which is in a classified document, the Government would like the procedure to be that we would have to make a written request to the "privilege team" explaining exactly why we need to talk with our client about whatever it is that our client supposedly said, and the "team" will check things out with the "appropriate government agencies" and get back to us....sometime this century. You should also take note that our client's interrogation reports (that is really what they are trying to stop us from using) are ostensibly classified because of other information in the reports that should not see the light of day...names of interrogators etc, that the government just has not gotten around to redacting. We of course cannot mention that type of information with our clients... but now the Government is trying to classify our clients own words so that we cannot verify what the government claims our clients have said.... unless of course the Government gives us permission.
There is more to this, but in a nutshell this tells it all: the DOJ wants everything our clients (supposedly) told the military/government to be considered classified and bar us from talking with our clients about it unless our clients happened to have told us the same thing... the DOJ continues to try to put a strangle hold not only on our communications with our clients but our communications with other habeas counsel.... and the end result of this new proposal is that it would make it even more difficult to prove our client's innocence.
Thursday, March 5, 2009
NEW DOJ POLICY OR 'bad apple' DOJ ATTORNEYS ON A LARK
I have been watching this issue unfold over the months, although it is not one that concerns either of my two clients. I guess it starts with the fact that the whole concept of our legal system is foreign to most of the men at Guantanamo (and to some of us who have worked in our legal system for say 25 years or so...) and some are not sure that they want attorneys (hmmm, I guess I cannot blame them on that score either). In addition, some of the men have severe mental health problems after years of being held in the cruelest of conditions without any charges against them or any end in sight....The bottom line is that some men at Guantanamo refuse to sign any piece of paper (I wonder why that would be???) and so they have not authorized their attorneys to represent them in writing and some men refuse to see their attorneys or only see their attorneys sporadically. The attorneys for these men keep plugging away and continue to file all the necessary papers and continue to work to get their clients out of Guantanamo.
So who cares?
Apparently some in the Department of Justice think that this is the perfect group to go after and a convenient way of getting rid of some of the habeas lawsuits...and now the DOJ is threatening to step up their efforts to dismiss the habeas cases for those men who have not signed or otherwise authorized their attorneys to represent them.
So my question is this, is this really the policy of the new DOJ? (I have now heard this from three separate attorneys with three different DOJ attorneys and all in the last week)... Or do we have a subgroup of hanger-ons who are continuing with the agenda from the last administration? Is anyone higher up paying attention? Does the justice department really want some of these men at Guantanamo to be unrepresented?
So who cares?
Apparently some in the Department of Justice think that this is the perfect group to go after and a convenient way of getting rid of some of the habeas lawsuits...and now the DOJ is threatening to step up their efforts to dismiss the habeas cases for those men who have not signed or otherwise authorized their attorneys to represent them.
So my question is this, is this really the policy of the new DOJ? (I have now heard this from three separate attorneys with three different DOJ attorneys and all in the last week)... Or do we have a subgroup of hanger-ons who are continuing with the agenda from the last administration? Is anyone higher up paying attention? Does the justice department really want some of these men at Guantanamo to be unrepresented?
Wednesday, March 4, 2009
The DOD's New General Counsel (and his two guiding principles)
And a welcome sight he is:
Within hours of being sworn in as the general counsel of the U.S. Department of Defense on Feb. 10, Jeh C. Johnson circulated a rare, if not unprecedented, e-mail to all 10,000 civilian and military lawyers working for the agency. "I wanted to send a message, and thought it would be significant if I sent it on my first day in office," said Mr. Johnson, 51, who, left a lucrative partner position at Paul, Weiss, Rifkind, Wharton & Garrison to take the third public service job of his 27-year career. A witness to the 9/11 terror attacks, Mr. Johnson said he left his law practice because he was concerned about the safety of the country and his own family. But he said that an uncle's experience with racial prejudice during World War II also has taught him that a concern for safety must be leavened with a respect for the law.
As general counsel, Mr. Johnson supervises an office of 100 attorneys, which functions as the principal legal adviser to Defense Secretary Robert M.
Gates. In the e-mail<http://www.nylj.com/nylawyer/adgifs/decisions/030309johnsonemail.pdf>bearing
his general introductory remarks to his new colleagues he vowed that he would be guided by two basic principles. First, he said that "our advice concerning the rule of law must remain consistent throughout changing and challenging times. Adherence to the rule of law permits us to occupy the moral high ground, and display the very best of American values." In that regard, he quoted Justice Sandra O'Connor's opinion in *Hamdi v.
Rumsfeld*<http://supreme.justia.com/us/542/507/case.html>,
542 U.S. 507 (2004), which reversed the denial of a habeas corpus petition filed on behalf of a U.S. citizen being detained indefinitely as an "illegal enemy combatant" under procedures Mr. Johnson's predecessor as general counsel helped develop. In *Hamdi*, Justice O'Connor wrote: "It is during our most challenging and uncertain moments that our nation's commitment to due process is most severely tested; and it is in those times that we must preserve commitment at home to the principles for which we fight abroad."
Second, Johnson pledged to foster "a collegial and collaborative working relationship between civilian and military lawyers," which would go "a long way toward timely, effective and quality legal services and legal advice."
Imagine (if you can) how many lives could have been saved over these past eight years if someone with principles like these had been in the position that Johnson is in now....
Best of luck to you Jeh.
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