Military Commission Appeal Tomorrow- UPDATED

BELOW-IS THE AUDIO FROM THE COMMISSION APPEAL AND BRIEFS OF THE PARTIES:

The audio of the Bahlul argument is here: https://webspace.utexas.edu/rmc2289/Bahlul%20oral%20argument.MP3   Bahlul's reply brief is here: http://www.lawfareblog.com/wp-content/uploads/2011/03/U-S-v-al-Bahlul-Reply-on-Specified-Issues-15-March-2011-2.pdf   The US brief is here: https://webspace.utexas.edu/rmc2289/2011.03.12%20Al%20Bahlul%20government%20response.pdf   Bahlul opening brief, preceded by CMCR order specifying issues, is here: http://www.lawfareblog.com/wp-content/uploads/2011/03/Al-Bahlul-Specified-Issues-25-Jan-to-24-Feb-2011.pdf  

The Search for Crimes to Support Conviction at Guantánamo....

Al Bahlul is the first appeal of a Guantánamo military commission conviction to proceed

before the Court of Military Commission Review. It is notable because it involves a

conviction and life sentence in search of supporting war crimes offenses.

Mr. Bahlul has been imprisoned at Guantánamo for nearly a decade. After two

presidential administrations, one Supreme Court decision, two acts of Congress, three

sets of charges, a trial that concluded more than two years ago, appellate proceedings that

began more than a year ago, a reshuffling of the Court of Military Commission Review

and a decision to hear the appeal en banc, the government has all but conceded that the

offenses for which Mr. Bahlul was originally convicted before a military commission –

conspiracy, solicitation and providing material support for terrorism – were not

established law-of-war offenses under U.S. or international law at the time they were

allegedly committed.

The court appears to recognize this as well, because on January 25, 2011, it issued

certified questions on its own and ordered the parties to address whether Mr. Bahlul’s

conviction can nonetheless be supported under a “joint criminal enterprise” theory of

liability, or on the grounds that he “aided the enemy,” despite the fact that he owed no

duty or allegiance to the United States. These questions are the subject of tomorrow’s

hearing.

The court’s action is highly irregular because the government expressly withdrew

reliance on a “joint criminal enterprise” theory of liability and never argued a charge of

“aiding the enemy” at Mr. Bahlul’s commission trial. Common sense also dictates that

attempting to justify a life sentence for an alleged “enemy” who owes no duty or

allegiance to the United States because he “aided the enemy” is illegal bootstrapping.

Military commission judges, no less than other military officers, are sworn to uphold and

defend the Constitution, not to devise creative legal theories never argued by the parties

at trial in order to uphold law-of-war convictions. Although the government may have

badly botched the prosecution of Mr. Bahlul, the court should reject the invitation in the

government’s response to the certified questions to search out some legal theory – any

legal theory – to support his conviction. Nothing less is demanded of a regularly

constituted court.

The court should also reject the government’s notable reliance on the “Seminole Wars”

of the 1800s, a genocide that led to the Trail of Tears. The government’s characterization

of Native American resistance to the United States as “much like modern-day al Qaeda”

is not only factually wrong but overtly racist and cannot present any legitimate legal basis

to uphold Mr. Bahlul’s conviction.

Sadly, however, the removal and attempted eradication of Native Americans is not unlike

the treatment of detainees at Guantánamo in that each stands alongside slavery and Jim

Crow, the targeting of immigrants, and the internment of Japanese Americans, among

other examples, as a stark reminder of how in times of fear and xenophobia our nation

has brutalized and demonized human beings as “others” who are unworthy of the rights

most Americans take for granted in order to deny them equal protection of the law.

Guantánamo was designed to be a prison where no laws applied. Today, it remains a

prison reserved exclusively for Arab and Muslim men, many of whom the president

recently announced would be subjected to military commissions, an ad hoc system

intended to manufacture convictions unattainable in federal court. This secondary system

of justice should be abandoned. Mr. Al Bahlul’s conviction should be overturned, and the

prison, which administration officials continue to recognize threatens and demeans the

United States, must be closed now.

wimpy sack of shit

I was going to try to keep this professional....but screw it. He doesn't deserve anything more professional. Yesterday G W Obama officially reinstated the military commissions. In this fact sheet found here they actually try to claim that this is somehow an extension of his promise to close Guantanamo and reinstate the rule of law- the promise he made in an executive order the day after he took office. That is almost as shameful as his speech the other day calling for the end of tax breaks to the rich....right after he of course agreed to the deal to extend the tax breaks because of course....he is a weasel who knows nothing about leadership....and if he has any principles he sure is not willing to stand up for them.

You can find the newest piece of shit executive order here.

I am still reviewing all of this....trying to find a glimmer of hope but I don't really hold out much hope between this asshole of a president and a judiciary that has given up on checks and balances (and forget about congress).

Have I mentioned lately just how much I hate him?

It just goes on and on my friends.

A tale of two writs

Last week the New York Times provided an editorial a right without a remedy asking the supreme court to accept cert in the case commonly known as Kiyemba (link to Petitioner's reply brief). The long and the short of the issue is that the supreme court held in 2008 that habeas corpus can be utilized by the men at Guantanamo to challenge their detention. It seemed a great (if late) victory for the many men who had already been held at Guantanamo for more than six years. But the DC Circuit court- which happens to be the only appellate court to hear Guantanamo habeas cases continues to refuse to give life to any of the Supreme Court decisions regarding Guantanamo. In the Kiyemba case the DC Circuit held that yes, the men can file habeas cases-but winning those cases does not mean the men necessarily will be released. In particular, one judge on the court, Judge Randolph -who somehow, even though he is on senior status-seems to be the writer of a great many of the guantanamo decsions from that court- is particularly hostile to the notion that the Supreme Court has the final say in these matters.

Following the NY Times editorial Jonathan Hafetz reflects on both the editorial and the DC Circuit in this must read:

http://www.concurringopinions.com/archives/2011/03/a-tale-of-two-writs

New Seton Hall Report

In recently declassified memos Rumsfeld made clear that he knew the men detained at Guantanamo were not the worst of the worst... In fact he complained that most of the men should not have been brought to Guantanamo.

In response Rumsfeld's "people" are trying to rewrite history by claiming that he never said the men at Guantanamo were the worst of the worst....

Read the Seton hall report here:

http://law.shu.edu/ProgramsCenters/PublicIntGovServ/policyresearch/upload/guantanamo-report-Rumsfeld-Knew.pdf

And read the Washington Post follow up story here:

http://voices.washingtonpost.com/spy-talk/2011/03/rumsfeld_complained_of_low_lev.html

Conditions of confinement for the "war criminals"

So far we have convicted in our military kangaroo proceedings: a kid, a cook, a man who worked at a "training camp" that closed two years before 9-11, and a man who refused to defend himself.

Carol Rosenberg from the Miami Herald (the only reporter that has consistently followed the Guantanamo beat) reports on life for these unfortunate men after conviction.

Under the Obabush administration it seems there are really only two ways out of Guantanamo: feet first or take a plea for something that you did not do ....the plea, by the way, is under laws that were not even on the books when the men (and child) were arrested....and then hope that my government lives up to the plea bargain.

Sweet land of liberty.

Spain to investigate torture claims of former gitmo prisoner

The Spanish high court has given the go-ahead to do what the US government refuses to do- investigate the claims of torture and other abuses at Guantanamo. The Spanish investigation is on behalf of a moroccan man who has lived in Spain for more than 13 years. Click on the title for a report (complete with links to the court documents) from the center for constitutional rights-which has been a leader in the demand for accountability.
Emptywheel has more here.

The Tortured Journey

It is hard to know where to start with this piece by Jason Leopold. I guess I will start by asking you to read it (click on the title).
I think it is fair to say that everyone who gets involved in the guantanamo litigation (on behalf of the detainees) is forever changed. I have watched this with the many attorneys I have worked with over this years and with other people I have met along the way. For those of us who are U.S. citizens we also have to deal with the shame of what our country has done and is continuing to do.
As many of you know I first became involved in the Guantanamo litigation in 2005 when I took on the representation of one man being held there. Shortly thereafter I took on the representation of a second man. Soon Guantanamo and everything that it symbolizes literally took over my life....to the point that I closed my law practice and solely focused on my two guantanamo clients and the institution itself.
I have been an attorney now for almost 30 years and when I started on this probono project I thought two things "how hard could it be?" and "this will probably last about a year." Both of those questions were really point on...because this litigation should not have been hard and it really should have been over in a year---years ago.
But I did not realize just how dishonest the department of "justice" had become and I did not realize how readily our once commanding judicial system would acquiesce its role as the independent arbiter.
Like Jason, those of us who are paying attention cannot help but become obsessed with the injustice of the Guantanamo gulag and the complacency and ignorance of the american people.
I just wish more people were paying attention.
Click here to read Jason's interview with David Hicks.

Guantanamo prisoners protest their indefinite detention

First Tunisia, then Egypt and now Guantanamo. Sorry I am a little late reporting on this.

Last month the military closed camp 4, the least restricted of the Guantanamo camps and moved all of the men to either camps 5 or 6. Both supermax facilities of the worst order. The men know that this is just the latest sign that the Obama administration has no intention of closing Guantanamo. After seeing reports of the uprisings in Tunisia the men started their own protest by putting up signs everywhere they had access.

Examples of some of the signs:

"where are the courts?" "what about our rights?" "where is democracy?"

All very good questions.

click on the title for more.

An interview with Professor Bassiouni

Late last month I had the honor of speaking along side Prof. Cherif Bassiouni at Depaul law school here in Chicago. He published The Institutionalization of Torture by the Bush Administration: Is Anyone Responsible? late last year and we both discussed the issue of torture and accountability.

Harper's Scott Horton now has this interview with the Professor.

Might he be just a tad nervous....?

Bush cancels trip to Geneva Switzerland as human rights groups prepared a 2500 page indictment against him for mistreatment of the men at Guantanamo.
He can run....but he can't hide.

Scott Horton has more here.
CLICK ON THE TITLE FOR MORE from Al Jazeera.

and click here to view the preliminary indictment.

Awal Gul dead of "natural causes"

Sadly another detainee died at Guantanamo this week. The military claims that the 48 year old man died of "natural causes." If you scroll through the records of the first batch of documents surrounding the death of individuals in military custody you will see that the military describes almost every death as being from natural causes.... who knows if we will ever know the truth surrounding Mr. Gul's death.
Mr. Gul's attorney's released this statement:

Awal Gul passed away on February 1, 2011, from an apparent heart attack, although we have no way of knowing whether the government is telling us the truth. It is ironic that Mr. Gul may have died doing the very thing that many middle-aged Americans do every day: exercising. Among the government's three categories of Guantanamo prisoners -- court prosecution, cleared for release, or indefinite detention -- I am sorry to say he was in the last category. Mr. Gul was kind, philosophical, devout, and hopeful to the end, in spite of all that our government had put him through. He was in American custody from December 25, 2001, until now. The government charged that he was a prominent member of the Taliban and its military, but we proved that this is false. Indeed, we have documents from Afghanistan, even a letter from Mullah Omar himself on Taliban letterhead, discussing Mr. Gul's efforts to resign from the Taliban a year or more before 9/11/01. He resigned because he was disgusted by the Taliban's growing penchant for corruption and abuse. Mr. Gul was never an enemy of the United States in any way.

It is shame that the government will finally fly him home not in handcuffs and a hood, but in a casket. It is also a shame that Mr. Gul sat imprisoned for years while the Congress (including Democrats and Republics), two Presidents (Democratic and Republican), the federal courts,the Departments of State, Defense, and Justice failed to show the maturity and leadership necessary to resolve Mr. Gul's case. He deserved better. His family, including his many children and grandchildren, deserved better.

Mr. Gul's enduring hope for Afghanistan, and even the United States forces in Afghanistan, is captured in an Afghan proverb he quoted to me more than once: "You cannot wash blood with blood."

The Department of Defense's press release earlier today is outrageous for a couple reasons. The government, through this post-death statement, makes claims more outlandish even than the government lawyers in Mr. Gul's habeas case. We now hear for the very first time in the nearly 10 years since Mr. Gul's arrest, that (1) he operated a guesthouse for Al-Qaida members, and (2) that he admitted providing bin Laden operational support on several occasions. Over the course of almost 3 years in court, the government has never provided any evidence at all to support this slander.

Neither Mr.Gul nor any credible witness has ever said such things. Indeed, this is
why the government placed Mr. Gul in the group of prisoners set for "indefinite detention;" it admitted that it lacked any credible evidence to prove its suspicions in a court of law. The government never even made these claims until now, when Mr. Gul is not alive to defend himself.

Beginning in the early 1980's, Mr. Gul was a member of local forces who were allied with the United States against the Soviets. From 1989-1996, he continued to run the local weapons depot in his hometown, not unlike a police commander, which he used to keep the peace. In 1996, the Taliban swept through eastern Afghanistan and took over his city at the barrel of a gun. Mr. Gul was given two options: flee with your family to Pakistan or stay home and operate the depot at the command of the Taliban. It must be remembered that the Taliban was initially greeted warmly by many Afghans, and even the American government, as a source of hope. Mr. Gul stayed home. The Taliban soon proved themselves to be as corrupt and abusive as we can imagine. Mr. Gul discovered this change over time and resigned from the Taliban more than one year before September 11, 2001. He was arrested in December 2001 when he voluntarily traveled to meet American military officials. He had nothing to hide then and has nothing to hide now. We shared all the evidence from Afghanistan that proves his innocence with the government and the federal court. Justice will now come too late for Mr. Gul.

Rest in Peace Mr. Gul.

Forum on Torture, Guantanamo & Accountability-in Chicago

For those of you who can't be bother listending to Obama tonight come and hear:
Prof. M. Cherif Bassiouni, President Emeritus of the International Human Rights Law Institute, UN human rights expert in Afghanistan, & author of "The Institutionalization of Torture by the Bush Administration" (2010), refute George Bush’s claim in his memoir that the torture committed with his approval was legal because his lawyers told him so;
(me) H. Candace Gorman, attorney for a Guantanamo prisoner, describe the torture detainees there endure and the ongoing imprisonment of 173 men at Guantanamo, despite President Obama’s pledge to close it;
and, Debra Sweet, national director of World Can’t Wait, describe actions this month to close Guantanamo and issue a challenge to be part of resisting the crimes being done by the U.S. government in our name.
The discussion will be moderated by Ben Meyer, member of Amnesty International and the National Lawyers Guild.

This event is co-sponsored by World Can't Wait, Amnesty International, and the DePaul College of Law Chapter of the National Lawyers Guild

.
6:00 pm * Tuesday * January 25

DePaul University College of Law
Rm 341, Lewis Center
25 E. Jackson Blvd, Chicago

Want to know more? Listen here

Berkeley Panel Tomorrow with be livestreamed....

INVITE: Amnesty International Panel Discussion With Former Guantanamo Detainee – Wed, Jan 26^th 7:30-9:00pm at UC Berkeley

Amnesty International USA would like to invite you to attend an exceptional panel discussion on Torture and Guantánamo Bay. In recognition of the two years that have passed since the Presidential Order to close Guantánamo, the goal of this event is to bring attention to the human rights violations that have occurred at Guantánamo Bay and to discuss its intended closure.

This expert speakers' panel will feature Omar Deghayes, a former Guantánamo detainee who has never been charged or convicted by any authority, who will participate via video conference from Brighton, England; Attorney Candace Gorman, whose Civil and Constitutional Rights work has included representing two Guantánamo detainees; and Professor Almerindo Ojeda from the UC Davis Center for the Study of Human Rights in the Americas http://humanrights.ucdavis.edu, which hosts the Guantánamo Testimonials Project. There will be a short Q&A session after the panel discussion. Please see links to articles below about Omar Deghayes and Candace Gorman.

The event will be held at the University of California Berkeley on Wednesday, January 26^th from 7:30pm – 9:00pm at 2050 Valley Life Sciences Building.

The event is co-sponsored by the UC Berkeley Human Rights Center, Health Professionals Against Torture, Survivors International, United Nations Association USA East Bay Chapter, Boalt Hall International Human Rights Clinic, Boalt Hall Committee for Human Rights, Amnesty International UC Berkeley Student Chapter and the Boalt Alliance Against Torture. The event is free and open to the public.

(Exciting news: Because of many requests from our supporters the event will also be a live webcast at www.livestream.com/amnestywest Please spread the word that now anyone can view the event live online. We will also film the event and put it on YouTube.)

Articles

How I fought to survive Guantánamo - Omar Deghayes
http://www.guardian.co.uk/world/2010/jan/21/i-fought-to-survive-guantanamo

Why I am Representing a "Detainee" at Guantanamo - Candace Gorman
http://www.huffingtonpost.com/h-candace-gorman-/why-i-am-representing-a-d_b_29734.html

190 DEAD and still counting............

On October 16, 2009, the ACLU filed a Freedom of Information Act request with the government seeking all records relating to the deaths of detainees in U.S. custody as part of the so-called “war on terror.” On January 14, 2011, the government released its first batch of documents consisting of 2,624 pages, which include approximately 124 autopsy reports and 133 Reports of Investigation by the Army’s Criminal Investigation Command. All told, the documents describe the death of approximately 190 detainees in U.S. custody under varying circumstances.

Documents released by the government:

[Link to] Autopsy Reports:

> Autopsy Reports (pages 1-1132) (63 MB)

[Links to] Reports of Investigation:

> 1 (pages 1-204) (31 MB)
> 2 (pages 205-402) (82 MB)
> 3 (pages 403-494, 531-604) (21 MB)
> 4 (pages 605-802) (90 MB)
> 5 (pages 803-1007) (72 MB)
> 6 (pages 1008-1214) (75 MB)
> 7 (pages 1215-1349) (54 MB)
> 8 (pages 1350-1488) (53 MB)
> 9 (pages 1489-1530) (8 MB)

Andy Worthington reviews my client's plight....

I guess I should mention that I have not spoken to Andy about the case at all....
Read his analysis here.