Saturday, May 2, 2015

From Roger Fitch and our Friends Down Under at Justinian

Being droned to death

Show us the kill-list criteria ... New US attorney general needs to fix the FBI ... $4 million investment in judicial election paid off handsomely for litigant ... CIA whistleblower convicted ... Carrying a concealed gun is a "lifestyle" ... Fitch fails to snag a seat at crowded US Supremes same sex marriage hearing 
"It turns out I'm pretty good at killing people."– Barack Obama, in a light-hearted aside
NY Times headline, "First Evidence of a Blunder in Drone Strike", is old news.
The announcement was unsurprising, as thePentagon admits it doesn't always know who it's killing. 
More here.  
President Obama's death-by-drone policy continues to attract critics, e.g. Germans unhappy to hear it's coordinated through Ramstein AFB, one of many American enclaves still embedded in Germany 70 years after the war ended. 
Drone assassinations can still be averted by capture, as a lucky Texan discovered.  
Muhanad al Farekh was fortunate to be kidnapped in Pakistan and (irregularly) extradited to the US - he's been nominated for drone-death since 2013.
 More here and here
Meanwhile, there's a new ACLU lawsuit seeking "kill-list" criteria.
*   *   *
Three Blackwater mercenaries involved in an unprovoked 2007 massacre in Baghdad's Nisour Square have each been given 30-year manslaughter sentences in the US; the man who started it all got life in prison for murder.
The NY Times has more on the sentencing of the unrepentant men plus a back-story about the Bush Justice Department's prior efforts to botch the case against employees of a generous Republican contributor.  
Fitch previously detailed the State Department's suspicious 2007 intervention (Oct. 10, 2007). 
*   *   *
US attorney general Loretta Lynch: needs to fix FBI's forensic hair analysis
There's a new US attorney general, Loretta Lynch, and one of the first things she will need to address is the poor performance of her department's investigatory arm, the FBI.
A new report finds that the FBI's forensic hair analysis was "flawed" in hundreds of cases before 2000, some involving death penalties subsequently carried out.  
Thousands of state cases also used the discredited FBI pseudo-science.
In one case, a single hair sent an innocent man to jail for 30 years; in another, a man spent 28 years in jail when a dog hair was identified as his
*   *   *
In US states – where 100 million cases are filed each year compared to 400,000 in federal courts – elected judges are increasingly for sale, according to a new study in Mother Jones.  
In one case, a mere $4 million investment in the election of a successful Illinois Supreme Court candidate led to a gratifying reversal of a $1.19 billion judgment against State Farm Insurance, and in Texas and Alabama, Republicans have apparently succeeded in bulk purchases of the supreme courts. 
*   *   *
Craig Murray, former British ambassador to Uzbekistan: CIA prisoner drop off
Poland, like Macedonia, has had to pay for CIA crimes in Europe.  
After a judgment against it in the European Court of Human Rights, Poland has now done the right thing and asked the US not to execute men at Gitmo who were tortured in Poland, e.g. Abd al-Rahim al-Nashiri.  
Now the question is being asked, did the CIA drop off some of its ex-Poland prisoners in Uzbekistan for a coup de graceCraig Murray thinks it's possible, and he was the British ambassador there. 
Lithuania, also under pressure from the ECHR, is reopening its investigation of CIA torture in that country.
*   *   *
At last, an ex-official of the CIA - a director, no less - has been convicted of a crime in a US court.
In a departure from the plea bargain of retired four-star General David Petraeus, the judge imposed two years' probation and the maximum fine of $100,000 - still less than Petraeus's usual speaking fee.
The misdemeanour sentence for unauthorised possession of classified information – given to Petraeus's mistress - is light compared to that of whistleblowers, and reveals a deepdouble-standard in Justice Department prosecutions.  
Jeffrey Sterling, a black CIA officer, is facing prison after a recent conviction on nine felony counts involving the alleged (and only circumstantially proved) leaking of secrets to NY Times' James Risen, considerably less "espionage" then the acts alleged against Petraeus.
Jeffrey Stirling, CIA lawyer: guilty of leaking
Sterling has now asked that his sentence be set aside, claiming DoJ considered race and rank in its disparate handling of the two cases.
Secrecy News has more and the NYT comments here
*   *   *
For those considering a visit to the US, be warned: there are states where it's legal to carry a concealed weapon without any permit whatever. The latest victims of NRA insanity live in Kansas.
As one Republican state politician explained, "Carrying a gun is a lifestyle ... government should trust its citizens". And anyway, "Kansans already have two documents granting them the right to concealed carry: the Constitution of the United States and the Kansas Constitution ... That should be all they need." At least he didn't mention the bible.
Of course, guns or not, this may not be a good time to visit the US. The Transport Safety Administration has a new guide for spotting arriving tourists suitable for no-fly lists.
According to the Intercept, it includes telltale signs of terrorist proclivities such as yawning - not unusual after a 15 hour flight from Sydney - and other giveaways such as complaints about screening; throat-clearing; staring; "improper" attire; "excessive" grooming; whistling; and that old favourite from Shakespeare, rubbing and wringing hands.
*   *   *
US Supremes: cogitating on marriage equality
The history of gay marriage in the US is not yet complete: so far, 37 states, the District of Columbia, Guam, Puerto Rico and 22 Indian Nations have accepted it, while the Navaho are still resisting.
On April 28, in what could be the most important civil rights case in a generation, the Supreme Court heard the argument in Obergefell v Hodgesa case that will finally settle the issue of same-sex marriage laws throughout the US.   
The party briefs are here and about 150 amicus briefs (a record) are listed here.
There's a handy guide here.
Fitch failed to snag a courtroom seat, but here's a program for those who did.
Initial reports of the oral argument suggest it won't be plain sailing for the plaintiffs. 
Harvard law prof Michael Klarman has written a fascinating two-part history of the US marriage equality movement thus far, here and here, and shows why the court's decision, to be announced in late June, should be a foregone conclusion, given the change in public attitudes.
In 1996, 25 percent of Americans supported marriage equality, and now polls find that 63 percent favour it.
If only Americans could change their views on, say, the wisdom of arming everyone; the utility of foreign wars; or the efficacy of the death penalty; as quickly as they altered their attitude towards same-sex relationships.  

Thursday, March 26, 2015

From Roger Fitch and our Friends down under at Justinian....

Out and proud


Four marriage equality cases go to the US Supremes ... Is there a constitutional right to gerrymander? ... Secretive lawyer society behind moves to bring downAffordable Care Act ... Shock finding - lawyers more liberal than most, but judges are more conservative ... Republican senators' undiplomatic activities ... Roger Fitch files from Washington 
Senator Tom Cotton: taking on Iran
Forty-seven Republican senators have sent Iran a brazen letter attacking Mr Obama's foreign policy powers, essentially promising that a future Republican government will break any agreement the Democrat president makes to forestall the development of nuclear weapons in Iran.
The undiplomatic note penned by Arkansas's notorious new senator, Tom Cotton is bad law and seems to violate the Logan Act'sprohibition of private correspondence with foreign governments.
Republicans have form when it comes to sedition. In 1968, they warned South Vietnam away from Lyndon Johnson's Paris peace talks, causing their collapse. In 1980, they persuaded the Iranians to hold on to the American hostages till Ronald Reagan had been elected, promising a better deal.  
But those plots were secret. With a Tea-Party Congress, it's another matter: they're out and proud.  
The Republican revolutionaries will likely go unpunished, as no one has been prosecuted under the Logan Act since it was passed in 1799.
Senator Cotton was recently promoted from his House seat with the help of nearly a million dollars from the "Emergency Committee on Israel", so his motives are open to question. 
Indeed, the real scandal lies in the fact that 47 of 100 senators are prepared to pursue the foreign policy goals of a foreign nation - in this case, Israel - as against their own government.
It's a policy that included the unilateral invitation to Benjamin Netanyahu to address Congress. The Israeli PM predictably used that platform to make partisan attacks on Iran and Obama, and generate video footage for his then ongoing political campaign.   
For more on the Republicans' incessant attacks on international law - eg, binding treaties and executive agreements between countries - there's a timely new book by LieberCode'sJens David Ohlin. 
*   *   *
Venezuela: posing a threat to the United States
President Obama's reconciliation with Cuba may have upset hardline Republicans - including two Cuban-American senators - but the bipartisan policy of beating-up independent-minded Latin American nations is still flourishing.
Just this month, Mr Obama warned the senate of a "national emergency" in which Venezuela posed "an extraordinary threat to the national security and foreign policy of the United States".
This declaration of an existential threat to the American republic was designed to trigger more pointless sanctions, and rightly drew ridicule from Al JazeeraEmptywheel's Marcy Wheeler and the NY Times.
Venezuela has reason to be wary: a representative of the misleadingly-named National Endowment for Democracy is reportedly travelling incognita in the country to meet - secretly - opposition leaders.   
*   *   *
Scalia and Thomas: travelling together
In April, the Supreme Court will consider four "marriage equality" cases from the 6thCircuit, the only circuit to rule against same-sex marriages. Meanwhile, the court continues to allow these marriages to go ahead in the circuits that have ruled them legal.
Alabama was briefly the 37th state to have gay marriage, but now there's a stand-off between the federal and state courts, reminiscent of the civil rights litigation in the 1960s. 
Clarence Thomas - joined by Nino Scalia - filed a bitter dissent in Strange v Alabama, accusing the court of "indecorous" and "cavalier" rulings.
In the midst of a busy schedule, the court still found time to knock back another Gitmo civil action, that of Abdul Al-Janko, a prisoner (now released) who experienced one of the more outrageous miscarriages of justice in the sordid history of Guantánamo Bay. 
There remain many more important cases before the Supreme Court in March, one of which involves independent commissions for determining electoral boundaries.
Australians accept an independent Electoral Commission as a sensible idea for removing politics from elections, but they're under attack in the US.
Arizona State Legislature v. Arizona Independent Redistricting Commission, currently before the court, considers whether a state legislature has a constitutional right to gerrymander, unhindered by citizen-approved independent bodies. 
The court seemed sceptical of independent boards at oral argument, and with swing-justice Anthony Kennedy showing a poor grasp of US history, it seems possible the legislature will win
*   *   *
Federalist Society behind moves to bring down Obama's Affordable Care Act
A new Harvard study has found that US lawyers are generally more liberal than the average citizen, while judges are more conservative. 
Why are judges conservative? Maybe it's because more federal judges have been appointed by Republican presidents, especially during the 12-year Reagan-Bush Reich.
In the early eighties, things were more balanced, so the Republican Party set out to rectify the problem through the creation of its rightwing legal front, the Federalist Society
Today that organisation is within striking distance of bringing down the Affordable Care ActObama's health insurance scheme.
More here on King v Burwell, where there's danger in the wind as the ideological majority gets another crack at thwarting Obama's health care reforms. 
*   *   *
At Guantánamo, the government has once again shown it can't be trusted to play nice at the innately unfair military commissions and the Convening Authority has resigned under pressure after adverse court rulings. 
Defence lawyers have already had to contend with FBI listening devices planted in smoke detectors of client interview rooms; government interference with and attempted co-optionof a defence team member; and even real-time censoring of court proceedings by unidentified spooks. 
Now, an interpreter offered to the counsel for the "9/11" accused has been recognised by the defendants as an alumnus of the CIA team at their torture black site.  
Confronted by the judge, the Pentagon readily admitted the interpreter was a CIA asset, but wouldn't say where. The case is proceeding without him.
There was some good news. The Kafkaesque gag order, which had prevented the defendants and their counsel from even talking about their black site and other torture by the CIA, has been partially lifted.  
One of the first prisoners to benefit will be the 9/11 defendant Mustafa Hawsawi, now free to discuss being - uh - sodomised by the CIA (see December post). 
Marty Lederman is optimistic things are improving. More here
*   *   *
US Virgin Islands: the new Guantánamo
As is well known, Cuba would like the US to leave Guantánamo - it's no longer being used as a coaling station.The governor of a US territory sees an opportunity, and wants to locate America's next Devil's Island in the lovely Virgin Islands. 
Fitch can hear it now - "Fermez St Croix!"  

Thursday, February 26, 2015

From Roger Fitch...At Justinian

Hicks: the questions that should have been asked

The Guantánamo torture diaries that have rocked the best-seller lists ... The Howard government's manifold blunders in the Hicks' case ... Imperial demands ... The United States' exceptional interpretations of the law of war ... Our Man in Washington, Roger Fitch, reports 
There's a new SecDef at the Pentagon, although at the moment, Secretary of War seems more apt.  
One of the things that "Ash" Carter may have to confront is a fresh examination of Pentagon treatment of "war of terror" detainees.  
It's the same issue just addressed in the Senate's CIA report.
The Feinstein Report concerned the CIA's RID (Rendition, Interrogation and Detention)  program, particularly its use of EIT (Enhanced Interrogation Techniques) acknowledged now to be torture, or at least CID (Cruel, Inhuman or Degrading), under the Torture Convention.    
While there have been no legal consequences yet, the CIA's systematic mistreatment of its prisoners has been exposed. Will the Department of Defence be next? 
The source of the Pentagon's possible anxiety is a Guantánamo "torture diary" published by Mohammad Ould Slahi. 
It's remarkable that the document saw the light of day: Slahi is still at Gitmo, and the diaryunderwent Pentagon censorship.
There have been many prison narratives by ex-Guantanameros, released to an indifferent public and media; Slahi's memoir, however, has been a publishing sensation, quickly hitting the NY Times bestseller list.
By a timely coincidence, the author's actual torturer is known and has been profiled in aGuardian report.
It's the same case where the assigned Pentagon lawyer, Stuart Couch, refused to prosecute for "war crimes" charges because the accused had been tortured.
The principal players in this torture drama are now known, and their roles confirmed.  
The cast includes, in addition to Slahi and Couch, the Justice Department lawyer John Yoo, who "authorised" the torture; former SecDef Donald Rumsfeld, who specifically approved Slahi's torture program; Geoffrey Miller, the Fifth-Amendment-taking prison commandant who facilitated the use of an experienced torturer, the Chicago cop Richard Zuley; and Zuley himself.  
Zuley: an early snap from his days in the Chicago police force
Others have come forward, yet nothing has happened. There has been no prosecution of anyone and no remedy for Slahi other than the dosh he may raise for his family through publishing his story.
*   *   *
Another, ex-Gitmo, inmate – already the subject of three published books, including his own - has seen his "material support for terrorism" conviction thrown out by the Pentagon's rubberstamp Court of Military Commission Review.
Despite the fact that David Hicks appealed 15 months ago, most of the pleadings were conveniently unavailable at the website of the Pentagon's drumhead CMCR and were posted instead by Hicks' US lawyers, the Centre for Constitutional Rights. 
Once Hicks' innocence was conceded in a brief by General Mark Martins, the Chief Prosecutor at Guantánamo, the CMCR got the hint, and ruled in favour of the defendant.
Martins: prosecutor conceded Hicks was innocent
Regrettably, the Australian government still refuses to accept Hicks' innocence, despite overwhelming legal precedent and advice, the experience of other countries and years to reflect upon its own behaviour.
No lessons have been learnt, and today's government continues to look at the man, instead of the human and legal rights implicated in the Hicks affair. 
The biggest questions about the Howard government's blunders and crimes against Hicks are unasked.
For starters, why did the Australian government of the day refuse to provide effective consular assistance to one of its citizens, when it does no less for drug smugglers, murderers and rapists in trouble overseas?  
Why did Australia accept, without question, US assurances that Hicks was guilty, and not mistreated?
Can it ever be lawful for another country to seize an Australian citizen, question him on its ship on the high seas and then intern him in a prison camp, without any Article 5 hearing on prisoner of war status as required by the Geneva Conventions (and in Hicks' case, the US Uniform Code of Military Justice)?
Does the US president have the authority to unilaterally suspend the Geneva Conventions (or any other treaty)? Or flout parallel UCMJ provisions that track Geneva, word-for-word?  
After the initial decision in Hicks' favour in DC district court, how could the Howard Government take the side of the US government on subsequent appeals? Why weren't briefs filed on Hicks' behalf in Rasul - his own case that he ultimately won?  
Why wouldn't any government want to support its citizen's right to habeas corpus in a foreign court?
As for the military trials, is it possible that the Howard Government never took advice as to the legality of the prosecution of Hicks under either presidential or statutory military commissions? 
Did George Bush have power to create a system of military commissions outside the UCMJ? When the Supreme Court, in Hamdan, ruled he did not, finding instead that the Bush commissions violated both US law and Geneva Conventions, why didn't the Australian government demand Hicks' repatriation?
Incredibly, the government then supported and encouraged Hicks' re-prosecution under the new Military Commissions Act, an Act which also purported (unsuccessfully) to denyhabeas, and contained the novel Material Support for Terrorism, a "war crime" any first year law student could have assessed invalid.  
Aside from Hicks' own suffering, the worst thing about the Howard government's hostile mishandling of the affair was the terrible precedent it set, not least a presumption of guilt in "terror" cases and a reflexive deferral to the imperial demands of the US. 
Hostile mishandling
Will Australians in future be able to count on their government's support when they are in trouble, or will the government of the day pick winners or losers on political factors such as irrelevant US relations? 
In Hicks' case, the Australian government knowingly supported a farcical trial, with procedural defects that violated  international agreements as well as the norms of Australian and American law, a trial condemned by legal associations and top silks throughout Australia.
The UK withdrew its citizens and residents - all but one - early on, before any trials; Australia could have done the same.
Even so, the UK government paid settlements to the affected men of a reputed £l million each, even including the one man still in stir.
So, yes, it does seem David Hicks may be entitled to compensation, whatever his character, if only to vindicate the rights of the rest of us. 
*   *   *
There is one country whose behaviour has been more outrageous than Australia's.
Canada's much-abused Omar Khadr will likely be the next person whose MST conviction is overturned by the CMCR.  
As for Khadr's "murder" conviction, the Canadian government remains the only country in the world known to support the baffling US notion that there's a distinction in combatants, and an unprivileged combatant has no rights under the laws of war.
Accordingly, such a war combatant who kills a US soldier, even by lawful means, somehow commits murder.  
This is nonsense. Such a combatant may be "unprivileged" under domestic laws - ie, subject to prosecution under the laws of the battlefield country - but his lawful combat is not a warcrime.    
Ironically, evidence in Khadr's case revealed the US had an unprivileged combatant (a CIA agent) in the firefight with Khadr, and one may be certain that if their man had killed Khadr, the US would not allow that act to be classified a war crime.  
One wonders whether the Howard Government would have acquiesced in this truly crazy interpretation of the laws of war.
What if David Hicks had injured or killed an American soldier, using - as Khadr was alleged to have done - lawful means?  
One trembles at the answer.

Sunday, January 25, 2015

Sorry-- the photos that went with this article are temporarily unavailable while I figure things out.....


Be afraid. Be very afraid. Those same men and women who locked up my clients at Guantanamo for ten years without charge or trial are at it again….and this time they have their sights on me and you. I guess it is an appropriate way for Mr. Obama and “our” Congress to celebrate the ten year "anniversary" of the opening of Guantanamo- by codifying indefinite detention and opening it up for U.S. citizens too. So take a look at this law (you might not want to read the whole 900+ pages-you can read a summary of the low lights here) that Obama signed on New Year’s Eve-while you were out partying -and think about what it must be like to be locked up indefinitely without charge or trial. I should mention that Obama (who told us he was a Constitutional Law scholar) promised that he would never use this law to lock up a U.S. citizen…if this makes you feel more comfortable I will just remind you that Obama has broken just about every promise he made in his campaign to get elected “(“I promise to restore our system of justice” “I promise to close Guantanamo” “I promise to fight for the middle class”)  ”I promise” …we read his lips and we heard his words, and even if he were to change course and keep this one promise, the law now on the books under Obama's signature will be waiting for future use by President Newt or President Mitt or President Sarah.
So what exactly does indefinite detention look like? Let me describe it from the perspective of my two clients and the years they have spent at Guantanamo... by the way, one of whom is still held there and remain…indefinitely, without charge. Why? In his case, because he was in the same guesthouse in Pakistan where a man was arrested that our Government thought was a “bad guy.” Not only is there not a shred of evidence that my client was involved in any terrorist activity or illegal activities but the government now even acknowledges that the person they thought was a “bad guy” is not quite what they thought he was either. It matters not; the indefinite detention continues... indefinitely.
On January 11, 2002 when the boys and men first began arriving at Guantanamo, no preparations had been made in advance for where they would stay….so they stayed in these cages.
The men were at one with the elements. When it rained, they were rained upon. When the winds blew, they shivered and when the hot Cuban sun beat down- it beat down on them without compunction. Lest you think the ivy shown in the picture provided some privacy and protection from the weather let me remind you that this is a recent photo. No ivy was allowed back when these cages were being used, because the men were not allowed any privacy-they were watched at all times, forced to relieve themselves in buckets and only leaving the cages for interrogations.  This went on for months, until permanent facilities were built.
Fortunately or unfortunately, the powers that be will likely be better prepared for you and I. They have now had ten years to prepare and test the conditions. From these cages the men (and boys) were eventually moved into something resembling a prison from the 1950’s. Although there were windows, there was no air circulation and of course there was no air conditioning. Cells lined two walls facing each other and the soldiers paced down the center.  Unlike the prisons in the U.S., these men and boys were not allowed to know anything that was going on in the outside world. They were not allowed newspapers or to watch television. As an attorney I was forbidden to mention any world news to my clients unless it was directly related to their personal situation or legal case. Their only visitors were their attorneys and legal translators-once that was allowed (and it was only allowed after the United States Supreme Court upheld a legal right to challenge detentions and a right to counsel) and, of course, their jailers and their interrogators. Once a week someone would walk through the prison with a cart of books and the boys and men were allowed one book per week. Most of the books in the cart were in English although few of the men read or spoke English. The same books were offered week after week, month after month, year after year. There was no recreation time to speak of- the men were allowed outside in a penned in area, a few at a time for short durations.  The men were not provided any kind of educational classes and they could not see or talk to their families. Although the men could write letters to their families, pens and paper were only allowed one day a week for a short period of time. If you had been involved in any mishap (like refusing a meal) the “privilege” of writing to your family was revoked. Letters from your family were read by censors and anything that referred to events in the outside world were redacted.

Obviously the powers that be thought that the prison conditions were still too generous for these men and boys who were being held indefinitely without charge. Hundreds of millions of dollars were poured into subsidiaries of Halliburton to build a supermax complex at the base. The current prisons were opened in 2006 and are commonly known as Camps 5 and 6. When Camp 6 opened in December 2006 men were picked at random to be a part of this new facility. One of those unfortunate men was my client Mr. al-Ghizzawi. Al-Ghizzawi was a quiet and gentle man who was also suffering from numerous health problems. When I complained about the inappropriateness of his placement in the solitary conferment in Camp 6 (I should note that the military’s own review team found him not to be an enemy combatant when they first reviewed the status of the men in the fall of 2004) one of the military lawyers told me to think of him as his having "his own apartment."
Camp 6 is a completely closed metal and plastic structure, very much like a self-storage locker. There is no natural lighting. For twenty-six months the men were kept in solitary cells for at least 22 hours a day. The “apartments” are approximately 8’ x 16’ and are fitted with a plastic bed and a metal sink/toilet combination. A thin mattress was provided and a plastic sheet is the only cover that is provided. The air conditioning was kept running so that the men were constantly freezing. The military guards were not allowed to talk to the men and their food was pushed through a bean hole on the floor. The men were allowed two hours of “recreation” time in a 24 hour period. Recreation time could take place at any time of the day or night- on some nights Mr. al-Ghizzawi was awakened at 2:00am and told he could have his recreation time if he cared to. Recreation time itself was spent alone in an approximately 4x4 cage in the center of the camp 6 compound-surrounded by the tall structure of the compound. Camp 5 is for all intents and purposes identical to Camp 6 and these are the two camps that are used for all of the men now remaining at Guantanamo- except of course for the so-called “high value detainees…” so it is fair to assume that should you or I be sent to Guantanamo or someplace very much like it, this is what our “apartment” will look like
Be afraid. Be very afraid. Those same men and women who locked up my clients at Guantanamo for ten years without charge or trial are at it again….and this time they have their sights on me and you. I guess it is an appropriate way for Mr. Obama and “our” Congress to celebrate the ten year "anniversary" of the opening of Guantanamo- by codifying indefinite detention and opening it up for U.S. citizens too. So take a look at this law (you might not want to read the whole 900+ pages-you can read a summary of the low lights here) that Obama signed on New Year’s Eve-while you were out partying -and think about what it must be like to be locked up indefinitely without charge or trial. I should mention that Obama (who told us he was a Constitutional Law scholar) promised that he would never use this law to lock up a U.S. citizen…if this makes you feel more comfortable I will just remind you that Obama has broken just about every promise he made in his campaign to get elected “(“I promise to restore our system of justice” “I promise to close Guantanamo” “I promise to fight for the middle class”)  ”I promise” …we read his lips and we heard his words, and even if he were to change course and keep this one promise, the law now on the books under Obama's signature will be waiting for future use by President Newt or President Mitt or President Sarah.
So what exactly does indefinite detention look like? Let me describe it from the perspective of my two clients and the years they have spent at Guantanamo... by the way, one of whom is still held there and remain…indefinitely, without charge. Why? In his case, because he was in the same guesthouse in Pakistan where a man was arrested that our Government thought was a “bad guy.” Not only is there not a shred of evidence that my client was involved in any terrorist activity or illegal activities but the government now even acknowledges that the person they thought was a “bad guy” is not quite what they thought he was either. It matters not; the indefinite detention continues... indefinitely.
On January 11, 2002 when the boys and men first began arriving at Guantanamo, no preparations had been made in advance for where they would stay….so they stayed in these cages.
The men were at one with the elements. When it rained, they were rained upon. When the winds blew, they shivered and when the hot Cuban sun beat down- it beat down on them without compunction. Lest you think the ivy shown in the picture provided some privacy and protection from the weather let me remind you that this is a recent photo. No ivy was allowed back when these cages were being used, because the men were not allowed any privacy-they were watched at all times, forced to relieve themselves in buckets and only leaving the cages for interrogations.  This went on for months, until permanent facilities were built.
Fortunately or unfortunately, the powers that be will likely be better prepared for you and I. They have now had ten years to prepare and test the conditions. From these cages the men (and boys) were eventually moved into something resembling a prison from the 1950’s. Although there were windows, there was no air circulation and of course there was no air conditioning. Cells lined two walls facing each other and the soldiers paced down the center.  Unlike the prisons in the U.S., these men and boys were not allowed to know anything that was going on in the outside world. They were not allowed newspapers or to watch television. As an attorney I was forbidden to mention any world news to my clients unless it was directly related to their personal situation or legal case. Their only visitors were their attorneys and legal translators-once that was allowed (and it was only allowed after the United States Supreme Court upheld a legal right to challenge detentions and a right to counsel) and, of course, their jailers and their interrogators. Once a week someone would walk through the prison with a cart of books and the boys and men were allowed one book per week. Most of the books in the cart were in English although few of the men read or spoke English. The same books were offered week after week, month after month, year after year. There was no recreation time to speak of- the men were allowed outside in a penned in area, a few at a time for short durations.  The men were not provided any kind of educational classes and they could not see or talk to their families. Although the men could write letters to their families, pens and paper were only allowed one day a week for a short period of time. If you had been involved in any mishap (like refusing a meal) the “privilege” of writing to your family was revoked. Letters from your family were read by censors and anything that referred to events in the outside world were redacted.

Obviously the powers that be thought that the prison conditions were still too generous for these men and boys who were being held indefinitely without charge. Hundreds of millions of dollars were poured into subsidiaries of Halliburton to build a supermax complex at the base. The current prisons were opened in 2006 and are commonly known as Camps 5 and 6. When Camp 6 opened in December 2006 men were picked at random to be a part of this new facility. One of those unfortunate men was my client Mr. al-Ghizzawi. Al-Ghizzawi was a quiet and gentle man who was also suffering from numerous health problems. When I complained about the inappropriateness of his placement in the solitary conferment in Camp 6 (I should note that the military’s own review team found him not to be an enemy combatant when they first reviewed the status of the men in the fall of 2004) one of the military lawyers told me to think of him as his having "his own apartment."
Camp 6 is a completely closed metal and plastic structure, very much like a self-storage locker. There is no natural lighting. For twenty-six months the men were kept in solitary cells for at least 22 hours a day. The “apartments” are approximately 8’ x 16’ and are fitted with a plastic bed and a metal sink/toilet combination. A thin mattress was provided and a plastic sheet is the only cover that is provided. The air conditioning was kept running so that the men were constantly freezing. The military guards were not allowed to talk to the men and their food was pushed through a bean hole on the floor. The men were allowed two hours of “recreation” time in a 24 hour period. Recreation time could take place at any time of the day or night- on some nights Mr. al-Ghizzawi was awakened at 2:00am and told he could have his recreation time if he cared to. Recreation time itself was spent alone in an approximately 4x4 cage in the center of the camp 6 compound-surrounded by the tall structure of the compound. Camp 5 is for all intents and purposes identical to Camp 6 and these are the two camps that are used for all of the men now remaining at Guantanamo- except of course for the so-called “high value detainees…” so it is fair to assume that should you or I be sent to Guantanamo or someplace very much like it, this is what our “apartment” will look like
Although some of the physical confinement conditions in Camp 6 have eased since Obama became president, other conditions are worse (such as the fact that no one at all has been released for over a year now), and 171 men remain indefinitely detained without trial or charge. As the conditions the men are held under are at the whim of our president it is hard to know what our conditions will be like, but it's reasonable to expect 22 hours a day of solitary confinement…..indefinitely, without charge or trial.  Although we were all taught in school about something called "the Constitution," our new reality is that there go you and I but for the grace of the gods, or the grace or whim of the man in the White House who thinks he's a god. 

Although some of the physical confinement conditions in Camp 6 have eased since Obama became president, other conditions are worse (such as the fact that no one at all has been released for over a year now), and 171 men remain indefinitely detained without trial or charge. As the conditions the men are held under are at the whim of our president it is hard to know what our conditions will be like, but it's reasonable to expect 22 hours a day of solitary confinement…..indefinitely, without charge or trial.  Although we were all taught in school about something called "the Constitution," our new reality is that there go you and I but for the grace of the gods, or the grace or whim of the man in the White House who thinks he's a god. 
FIVE YEARS LATER... but who's counting?' ...by H. Candace Gorman, Esq.
I know Mr. Al-Ghizzawi is counting, as are the 400 other men sitting in the wretched heat at Guantanamo bay Cuba. The expression “time flies” has no meaning to these men. At Guantanamo Bay time does not fly, it drags on, in a dry, cruel and sadistic way.
The first time I went to the base my client had already been there more than four years. The first part of his detention was spent in a cage with a strip of concrete around the sand floor. It was open to the elements: be it sun, rain, cold, or the occasional hurricane. The hovel erected by our government to house human beings looked like the animal shelter where we picked out a dog some years back, only our dog had a little covered corner where she could get away from the weather.
Mr. Al-Ghizzawi and the other men were eventually “upgraded” to the facilities they are currently living in. Now they have walls, a roof and barred windows. They have air conditioning and concrete floors. Everyday the air conditioning is blasting cold air on poor frail Mr. Al-Ghizzawi. He has no blanket (blankets are not allowed). Instead he has a plastic “thing” to cover himself with. This plastic “thing” is cold when it is cold and hot when it is hot. It is never washed and it stinks.
But the floors are washed. Everyday gallons of a pine sol like substance are thrown on the floors and the men are forced to breath in the fumes for hours until someone gets around to hosing the solvent off the door. Mr. Al-Ghizzawi described how his eyes and throat burn and how he coughs and gags, every day. Unfortunately, some of the guards laugh at the discomfort that this causes the men. Some even leave buckets with the solvent under the open windows so that Mr. Al-Ghizzawi and the other men are forced to continue breathing in the fumes all day and/or night. These men sit in their tiny cell: day after day, week after week, year after year. They have nothing to occupy their time.
As Mr. Al-Ghizzawi was telling me this, I was looking around at the tiny cell where we were meeting. We were at Camp Echo. Camp Echo is made up of several one-story buildings divided into two rooms by mesh grates. The eight feet by ten feet concrete buildings have no windows, but are somewhat air-conditioned (it’s not quite as hot as being out in the sun). The cell side contains a toilet/sink combination and a metal cot. The visitor side contains a table and chairs. The lawyers meet with their clients on the visitor side of this tiny cell. The client’s feet are shackled to the floor.
This same Camp Echo is where the interrogations take place. This fact is not lost on the detainees. On another day, an interrogator could be sitting in my very same chair asking Mr. Al-Ghizzawi or some other detainee whatever question it is that they think is relevant after five years of detention. The interrogations clearly focus on important issues. For example, in Mr. Al-Ghizzawi’s last interrogation (a few months ago) he was questioned at length about the type of perfume his wife wears. The answer, of course, was none. They were poor shopkeepers; they could not afford such a luxury. Mr. Al-Ghizzawi asked me why they ask him such stupid questions. I explained to him that he is probably being used for training purposes (for training the interrogators). In fact Rumsfeld said as much a few years back, that Guantanamo was a wonderful training ground for the interrogators. We know now that techniques developed at Guantánamo were applied expertly in Abu Ghraib. There is no other explanation for Mr. Al-Ghizzawi to be here. The military found Mr. Al-Ghizzawi to not be an enemy combatant when they were classifying the detainees. Unfortunately Washington overruled that determination, claiming five weeks later that they had new evidence. It was a crock. Mr. Al-Ghizzawi is truly an innocent man trapped in a living hell.
As we sat in Camp Echo and talked about his health problems and his family, I could feel the sweat pouring down my back. Each night after our meetings I would go back to my hotel room and wash my dripping wet clothes and think about the fact that Mr. Al-Ghizzawi does not have this, or any other, luxury. I wonder how Mr. Al-Ghizzawi can keep going, not charged with anything and with no end in sight. Amazingly, he even shows a sense of humor at times. How can he sit here and discuss with me notions about justice and civil rights and then go back to that cell with its wretched smell of pine oil, not knowing if he will ever get out of here?
Now that the men are in their “upgraded” facilities, they get very little time outside. Of course there are no trees or shade when they are outside, so it is a double edged sword to ask for time outside. (I can hear Rumsfeld saying “ok you want fresh air, stand out here for 10 hours.”) When they are led into the open pen area for their few minutes of “recreation” time, Mr. Al-Ghizzawi tells me the first thing he looks to see is which guards are on duty. If he is lucky, he might see the little cat that sometimes comes to the area. He says it is a nice little cat and the detainees try to bring it scraps of food when they can. He said the cat is very smart, it knows that certain of the uniformed men are very cruel and it does not come around when those particular guards are present. Mr. Al-Ghizzawi envies the luck of the cat, it can pick and choose when to show up.
So now we start year five. Mr. Al-Ghizzawi’s health is rapidly deteriorating from the effects of untreated hepatitis B and tuberculosis. His daughter, who was just a few months old when he was turned in for a bounty and whisked off to Guantanamo, will turn six soon. His wife and daughter live on the kindness of family. The bread and spice shop owned and operated by Mr. Al-Ghizzawi and his wife has been long since closed down (she cannot run the shop without him). Our courts and politicians have forsaken Mr. Al-Ghizzawi. The diplomats look the other way. Countries that understand just how awful the US has become refuse to take Guantanamo refugees, not because they are afraid the men are terrorist, but because they don’t want to be seen doing anything to help the US out of this awful mess we made for ourselves. Time will not look favorably to anything our country has done to the men of Guantánamo, but that is a bitter-sweet pill for the men we have caused to suffer so greatly.
When Mr. Al-Ghizzawi was explaining to me his early years at Guantanamo, he told me about a flower that had appeared outside his cage in the spring of 2002. Just one little flower poking its beautiful leaves and petals out of the sand. He was describing the flower to me, but I couldn’t quite figure out what kind of flower it was. He called it a primrose and maybe it was. He said to me “I am like that little flower. It didn’t belong there…. I don’t belong here either.”
H. Candace Gorman is a civil rights attorney in Chicago. Visit her blog at http://www.gtmoblog.blogspot.com/

Yes I am Pissed Off....

YES, I AM PISSED OFF

I often give speeches to groups that are interested in hearing about my experiences representing two men at Guantanamo. Last week I spoke to a group of high school students in the Chicago area. I had spoken to students from this same school a few years ago and now some of the students were getting ready to graduate and they wanted an update. Unfortunately I did not have anything heartening to say. My clients, who should have been released years ago, are still there. After one year of the Obama administration the Justice Department is still in a shambles and showing no signs of improving. But I was at least glad for the opportunity to remind these students, before they headed off to college or wherever else they are going, that there is still much that needs to be done if our country is going to remain a constitutional republic.
I started out my talk explaining to the students the driving force that led me in 2005 to agree to represent two men at Guantanamo. You see, I wasn’t planning on taking on the representation of someone at Guantanamo when I signed up to attend a bar association luncheon in 2005. I just thought it would be interesting to hear about the legal battles involved in the Guantanamo litigation. Anyway, it doesn’t really matter because I actually missed the luncheon. I was home sick and when the luncheon reminder popped up on my laptop that morning I just deleted it, thinking I will learn about Guantanamo some other day. Little did I know that that day would come so soon.  A few days after the missed luncheon I received an email thanking me for my attendance (!) and reminding me that there were still several hundred men without attorneys at Guantanamo. A few weeks after that email I volunteered to represent first one man at Guantanamo and later a second man. As they say, the rest is history.
However, the history has not been a pleasant one. I of course knew when I saw that email that I had no choice; I had to represent a Guantanamo prisoner. As I explained to the students, I took an oath when I became a lawyer (the same oath all lawyers must take) promising to defend the Constitution of the United States. I and the other attorneys representing men at Guantanamo take that oath very seriously (unlike attorneys Yoo, Bradbury and Bybee to name but a few). Our Constitution is more than an important document; it has been our country’s roadmap for a somewhat free and just society.  When we start to veer off the road it is incumbent on lawyers (and judges) to step in and try to uphold our system of law, because if we do not, no one will. So I proudly volunteered to do my part to maintain the rule of law and I took on the representation of a man at Guantanamo.
As I reminded the students, I did not pick which clients would be mine.  I volunteered to represent a man at Guantanamo that wanted an attorney. For all I knew my client could have turned out to be the “worst of the worst.” But that did not matter to me because this is not about guilt or innocence. You do not even get to guilt or innocence until you have been charged with something and none of the men at Guantanamo have been charged with anything. What I volunteered to do was to get a habeas hearing for my clients. Habeas Corpus literally means “you have the body.” A quaint phrase that perhaps can best be described as a summons to the jail keeper (in this case the pentagon) ordering the jail keeper to bring the person being held before a judge and explain to the judge why the person is being held. The judge then determines whether or not the jailer has the lawful authority to hold that person. If the judge determines that the jailer does have the legal authority the person will remain in custody and be tried in a court of law. If the Judge determines that there is no legal basis for holding the person then the person must be released from custody. The whole purpose of habeas corpus is to make sure that people are not rounded up arbitrarily and held indefinitely without charges filed against them. So when you hear habeas corpus described as the cornerstone of our judicial system you should think of it as the bracing wall for our judicial system: without habeas corpus our legal structure will fall apart.
I spent the next 20 minutes or so of my speech discussing my clients: men who were swept up following an unconscionable policy of offering “bounties” to anyone who turned over “terrorists and murderers,” no questions asked and no proof required. Men who have been held in the cruel confines of Guantanamo year after year for more than eight years with no charges filed against them. Men who have not seen or spoken to their wives and children all these years. Men, who despite the torture and humiliation still hold no ill will toward the American people.
I ended my talk discussing the irony of the Bush administration realizing early on that it was holding men who were wrongly picked up and over time they released more than two-thirds of the men quietly to their home countries, usually in the middle of the night. These men, who had been physically and psychologically tortured because we mistakenly thought they were terrorists, were sent home to try to rebuild their lives with no apology from us, and no help, financial or otherwise. By the time Obama became president the Bush administration had released more than 500 of the men that had been held at Guantanamo.  Of the approximately 240 men remaining at Guantanamo when Obama took office the Obama administration slowly determined that most of those men should also be released, without further ado. Unfortunately, and also without further ado, most of these men, including my clients, continue to languish at Guantanamo, while our ignorant politicians do their best to frighten and confuse the American people and most of our judges continue to refuse to give these men their habeas hearings.
 I always try to leave time for questions.  Like so many of my audiences the students had quietly listened to my talk with looks of concern on their young faces. It took a minute but then the questions started. In the back of the auditorium there was a young man who started to raise his hand a few times but each time put it down before I could call on him. Finally, he held his hand up high to get my attention and when I pointed to him he stood up, looked at me with an anguished expression on his face, and he asked: “Doesn’t this just piss you off? I mean, I am listening to you and I am getting really pissed off? …Are you pissed off?”
Although there were a few chuckles everyone knew this was a serious question. And then the bell rang and it was time for the students to go on to their classes. But no one moved. I looked at the young man and then at the other students and I answered slowly, “Yes……Yes, I am pissed off…. In fact, I am more pissed off than you could ever imagine.”
If there had been more time I would have explained to the students that I am not pissed off just because my two innocent clients are still sitting in that hellhole we call Guantanamo. I am pissed off because  my country continues to think it is ok to torture people; that my country thinks it is ok to round up people and put them in prison without ever charging them with wrongdoing; I am pissed off that Karl Rove has been replaced by Rahm Emanuel; that our country does not care if we abandon our civil law system for military law; that lawyers who fight to maintain our Constitution are branded terrorists; that my country is not bringing our war criminals to justice because we need to “look forward;”that we are spending our country’s hard earned money bailing out banks and making wars. I am pissed off that Obama did not tell us his whole slogan: “Yes we can… but we won’t.” I am pissed off every day when I get an email from the Pentagon announcing our latest casualties. I am pissed off at our feckless judges (but not 5/9s of our Supreme Court) who are afraid of the Guantanamo cases. I am pissed off at the American people who continue to allow themselves to be whipped into a frenzy of fear. I am pissed off that my country is falling apart and the American people only seem to care about stupid television shows.  Yes, I am pissed off and you should be too.

In fact, if you are not pissed off you are not paying attention….and that pisses me off too.