Sunday, June 17, 2007

Our Man in Washington

Roger Fitch Esq • June 15, 2007

In the American film noir Body Heat (1981), Kathleen Turner gets her lover, a seedy lawyer played convincingly by William Hurt, to draft a will for her rich and soon-to-be-dead husband. She knows that, thanks to Hurt’s incompetence, the document will be found invalid, all to her benefit.

I was reminded of that stratagem when military judges in Guantanamo threw out the Khadr and Hamdan “war crimes” cases this month for lack of jurisdiction.

As the Financial Times remarked “It is unclear whether this blunder reflects stunning incompetence or arrogant disregard for the law.”

Perhaps something similar to Body Heat happened when the Military Commissions Act 2006 was being drafted. Did Pentagon rats-in-the-ranks or Senate saboteurs plant a time-bomb in the draft legislation?

In any case, the Bill that became law contained what proved to be a fatal flaw when it was grafted onto the pre-existing Combat Status Review Tribunals, for the MCA used the word “unlawful”.

Under the MCA, a defendant must be an “unlawful alien enemy combatant”, and this has been duly alleged in “war crimes” charges. However, the CSRTs, whose decisions are “dispositive” under the MCA, have used the meaningless “enemy combatant” status concocted by the Bush administration.

As the LA Times noted in its report of the proceedings, the Bush lawyers eliminated the lawful and unlawful distinction in order “to deprive the war-on-terror suspects of POW rights and living conditions”.

The CSRTs have no legal basis in any statute or regulation. They were diversions set up by the Pentagon within ten days of the 2004 decision of the Supreme Court in Rasul (Hicks), the case that confirmed the right of Guantanamo detainees to have habeas corpus hearings in Washington federal courts.

Being ad hoc and extralegal, the CSRTs conscientiously tracked other Bush flummeries such as the wholly imaginary “enemy combatant”, a fabulation designed by Bush lawyers in the ignorant belief that it would fall outside both criminal law and the law of war. The only alternative status was “no longer an enemy combatant.” That no such categories existed under the Geneva Conventions or international law was of no moment.

In fact, CSRTs ask the wrong question. They present detainees with “a paralysing Catch 22”. Admitting membership in the Taliban makes one an “enemy combatant”, which (the Pentagon claims) precludes PoW status. But denying involvement with the Taliban leaves a prisoner unable to show that he is entitled to PoW treatment. It’s diabolical.

Even if CSRTs provide a bare justification for holding prisoners taken on a battlefield, the omission of a determination of combat status means they can confer no “war crimes” jurisdiction over defendants.

Now, in decisions of separate military judges in Guantanamo, this legislative flaw has caused the dismissal of both the Khadr and Hamdan military commissions. As many noted, the striking effect of the decisions, particularly in the case of Hamdan, is to find that there are in fact no “unlawful enemy combatants” in Gitmo.

David Hicks already has the distinction of being the first person to be held in an Australian prison for an “offence” that is not a crime, “tried” in a court which violated the standards embodied in Australian law, the Geneva Conventions and indeed, the United States constitution and laws.

There is also the little matter that the regulations for the military commissions weren’t even issued when Hicks pleaded “guilty” in March. And the court rules were only issued in May.

Then there was the Australian legal opinion – from retired justice Alistair Nicholson and other eminent lawyers , that the “trial” at Guantanamo might itself be a war crime in which senior ministers of the Australian government were arguably complicit under Australia’s own criminal laws.

After all, defective trials of downed US pilots were considered war crimes by the US when these were conducted by the Japanese in WWII.

Now, however, we find that David Hicks’ plea was accepted by a commission, which according to two of its own judges did not have jurisdiction.

That’s the import of the decision of the military judges, Army Colonel Peter Brownback and Navy Captain Keith Allred, in the cases of the Canadian Omar Khadr and the Yemeni Salim Hamdan, delivered on Monday June 4, a day that will live in infamy for the shoddy workmen passing as lawyers in the Bush administration.

Worst of all for the Bush lawyers, each decision followed from a sua sponte initiative of the judge, the first (that of Khadr) without prompting from military defence counsel. Here is the Khadr judgment and Marty Lederman has more.

According to Judge Allred’s decision in the Hamdan case, the defendant could be one of three things: a prisoner of war, an unlawful alien enemy combatant or something else. Since the government failed to demonstrate that Hamdan belonged to the second category, the military court lacked jurisdiction to try him.

This observation is particularly interesting because it marks the first time that the elephant in the room – the failure to consider the possibility that these men are prisoners of war – has been mentioned since DC District Court Judge James Robertson did so in his 2004 decision in favour of Hamdan.

Robertson had conceded that another “competent tribunal” than the one provided in the US military regulations could suffice, but pointedly said that “the President is not a competent tribunal”, a view shared by Judge Allred in the Hamdan tribunal.

If you’re wondering where you heard the name of Khadr’s judge before, it may be because Peter Brownback was the judge in David Hicks’ original military commission.

This year, however, Hicks appeared before a different judge, Col. Ralph H. Kohlmann. What if it had been Brownback?

* * *

On the same day that the tribunals dismissed (without prejudice) the cases of Hamdan and Khadr, the Supreme Court invited the government to respond within 30 days to the petition for rehearing in the Al-Odah (Hicks)/Boumediene cases.

These were denied certiorari in April, but the court reserved the right to act further, presumably in the event of government mala fides in the DC Court of Appeals where Detainee Treatment Act actions are scheduled.

Surely the latest debacle in Guantanamo will be raised. Of course, the DC cases are about detention, not military commissions, even though Khadr is part of the Al Odah case as a detainee.

As the military judges said that no one in Gitmo has been found to be an unlawful enemy combatant, it is now being suggested that the PoW and Article 3 (non-PoW) issues are back in play.

These issues have relevance for all detainees, since in theory no one in Guantanamo is being held pursuant to a holding of unlawful combatant status – the only lawful basis for denying a combatant PoW status.

Finally, three days after the Guantanamo decisions, the lawyers for other detainees launched a new attack in the DC Court of Appeals, centred on the adequacy and methods of the CSRTs.

By the end of the week, Hamdan’s lawyers had filed a motion in the DC Court as well, seeking en banc review of its February ruling ordering the dismissal of the detainee habeas cases, and other relief.

* * *

In earlier reports I have noted the Tendenz of the Buschvolk to appropriate old Nazi expressions for their more unsavoury experiments, e.g. Heimatssicherheit morphed into the identically named Homeland Security.

Now the astute blogger Andrew Sullivan has discovered the origins of the CIA’s infamous techniques of “Enhanced Interrogation”.

As Sullivan found, it’s a translation of verschaerfte Vernehmung (literally, “sharpened” interrogation). The techniques described in the Nazi protocol are also much the same, although the Nazis didn’t include die Wassertortur in their list of delights.

Some things just don’t lend themselves to literal translations: the Fuehrer Prinzip has been adapted to the Unitary Executive Theory.

Monday, June 11, 2007

An Open Letter to the President of the American Psychological Association

June 6, 2007

Sharon Brehm, Ph.D.
American Psychological Association

Dear President Brehm:

We write you as psychologists concerned about the participation of our profession in abusive interrogations of national security detainees at Guantánamo, in Iraq and Afghanistan, and at the so-called CIA "black sites."

Our profession is founded on the fundamental ethical principle, enshrined as Principle A in our Ethical Principles of Psychologists and Code of Conduct: "Psychologists strive to benefit those with whom they work and take care to do no harm." Irrefutable evidence now shows that psychologists participating in national security interrogations have systematically violated this principle. A recently declassified August 2006 report by the Department of Defense Office of the Inspector General (OIG) — Review of DoD-Directed Investigations of Detainee Abuse — describes in detail how psychologists from the military's Survival, Evasion Resistance, and Escape (SERE) program were instructed to apply their expertise in abusive interrogation techniques to interrogations being conducted by the DoD throughout all three theaters of the War on Terror (Guantánamo, Afghanistan, and Iraq).

SERE is the US military's program designed to train Special Forces and other troops at high risk of capture to resist "breaking" during harsh interrogations conducted by a ruthless enemy. During SERE training, trainees are subjected to extensive abusive treatment, including sensory deprivation, sleep deprivation, isolation, cultural and sexual humiliation, and, in some cases, simulated drowning ("waterboarding"). By SERE's own admission, these techniques are classified as torture or cruel, inhuman, or degrading treatment.

The OIG report details a number of trainings and consultations provided by SERE psychologists to psychologists and other personnel involved in interrogations, including those on the Behavioral Science Consultation Teams (BSCT), generally composed of and headed by psychologists. The OIG confirms repeated press accounts over the last two years that SERE techniques were "reverse engineered" by SERE psychologists in consultation with the BSCT psychologists and others, to develop and standardize a regime of psychological torture used by interrogators at Guantánamo, and in Iraq and Afghanistan. The OIG report states: "Counterresistance techniques [SERE] were introduced because personnel believed that interrogation methods used were no longer effective in obtaining useful information from some detainees."

The OIG report also clearly reveals the central role of psychologists in these processes:

"On September 16, 2002, the Army Special Operations Command and the Joint Personnel Recovery Agency [the military unit containing SERE] co-hosted a SERE psychologist conference at Fort Bragg for JTF-170 [the military component responsible for interrogations at Guantánamo] interrogation personnel. The Army's Behavioral Science Consultation Team from Guantánamo Bay also attended the conference. Joint Personnel Recovery Agency briefed JTF-170 representatives on the exploitation techniques and methods used in resistance (to interrogation) training at SERE schools. The JTF-170 personnel understood that they were to become familiar with SERE training and be capable of determining which SERE information and techniques might be useful in interrogations at Guantánamo. Guantánamo Behavioral Science Consultation Team personnel understood that they were to review documentation and standard operating procedures for SERE training in developing the standard operating procedure for the JTF-170, if the command approved those practices. The Army Special Operations Command was examining the role of interrogation support as a 'SERE Psychologist competency area'" (p. 25, emphasis added).

It is now indisputable that psychologists and psychology were directly and officially responsible for the development and migration of abusive interrogation techniques, techniques which the International Committee of the Red Cross has labeled "tantamount to torture." Reports of psychologists' (along with other health professionals') participation in abusive interrogations surfaced more than two years ago.

While other health professional associations expressed dismay when it was reported that their members had participated in these abuses and took principled stands against their members' direct participation in interrogations, the APA undertook a campaign to support such involvement. In 2005, APA President Ron Levant created the PENS Task Force to assess the ethics of such participation. Six of the nine voting psychologist members selected for the task force were uniformed and civilian personnel from military and intelligence agencies, most with direct connections to national security interrogations. Perhaps most problematic, it is clear from the OIG Report that three of the PENS members were directly in the chain of command translating SERE techniques into harsh interrogation tactics. Although we cannot know exactly what each of these individuals did, their presence in the chain of command is troubling.

One such task Force member is Colonel Morgan Banks who, according to his Task Force biography

"is the senior Army Survival, Evasion, Resistance, and Escape (SERE) Psychologist, responsible for the training and oversight of all Army SERE Psychologists, who include those involved in SERE training.... He provides technical support and consultation to all Army psychologists providing interrogation support.... His initial duty assignment as a psychologist was to assist in establishing the Army's first permanent SERE training program involving a simulated captivity experience…. In November 1991 [sic: 2001], he deployed to Afghanistan, where he spent four months over the winter of 2001/2002 at Bagram Airfield, supporting combat operations against Al Qaida and Taliban fighters."

Thus, according to the OIG report, Colonel Banks had direct command responsibility for the SERE psychologists training, consulting, and participating in interrogations and provided "support and consultation" to other psychologists involved in abusive interrogations. In fact, reading the OIG report renders it difficult to imagine that Colonel Banks was not himself directly involved in developing and/or implementing these abusive activities. The OIG report appears to confirm what has been suspected at least since the publication in July 2005 of Jane Mayer's New Yorker article "The Experiment": that Colonel Banks was intimately involved in the teaching and development of the abusive interrogation tactics documented by the International Committee of the Red Cross, and now by the Department of Defense, as being used at Guantánamo.

Colonel Larry James, a second PENS member, "was the Chief Psychologist for the Joint Intelligence Group at GTMO, Cuba" (PENS Task Force member biographies) starting in January 2003. Col. Larry James has often been cited by Gerald Koocher, Stephen Behnke, and others, as the one who 'cleaned up' Guantánamo and Abu Ghraib. The OIG report, however, makes it clear that Guantánamo BSCTs played an essential role in transforming SERE techniques into standard operating interrogation procedure; that the Commander of Guantánamo detainee operations requested official approval for the use of these torture techniques in October, 2002; and that permission was granted by Defense Secretary Rumsfeld in December 2002. Additionally, as stated in his PENS biography, in 2003 James "was the Chief Psychologist for the Joint Intelligence Group at GTMO, Cuba." In 2004, James was Director, Behavioral Science Unit, Joint Interrogation and Debriefing Center at Abu Ghraib. It should be noted that that in 2004, according to many sources, Gen. Geoffrey Miller, Guantánamo Commander, too, went from Guantánamo to Iraq, and brought the SERE techniques with him. James was the commander of the BSCTs at the time the FBI and other law enforcement agents were reporting that severe abuses were occurring at Guantánamo. The FBI and other Criminal Investigative Task Force agents reporting these abuses referred to them as “SERE” and “counter-resistance” tactics in documents obtained by the ACLU under the Freedom of Information Act.

Yet another task Force member, Captain Bryce Lefever, had previously been a SERE psychologist where he supervised "personnel undergoing intensive exposure to enemy interrogation, torture, and exploitation techniques." He "was deployed as the Joint Special Forces Task Force psychologist to Afghanistan in 2002,” presumably replacing Col. Banks who had previously held that role. Capt. Lefever “lectured to interrogators and was consulted on various interrogation techniques" (PENS Task Force member biographies). That is, he had the requisite SERE background and it appears that he was involved in interrogations in Afghanistan at the time that, as the OIG report reveals, the abusive SERE-based techniques were being utilized through Special Forces units.

In addition to these three members who were directly in the military chain of command responsible for employing the SERE techniques as interrogation tactics, another member of the PENS Task Force, Scott Shumate, stated in a conference biographical statement that "From April 2001 until May of 2003 he was the chief operational psychologist for the CIA's Counter Terrorism Center (CTC).... He has been with several of the key apprehended terrorists." The CTC, according to press reports, is responsible for managing the CIA’s Black Site facilities where the top 14 Al Qaeda operatives in US custody were initially held and interrogated. The "key apprehended terrorists" that Shumate refers to are very likely those Al Qaeda operatives subjected to the CIA's brutal "enhanced interrogation techniques.” Thus, the available evidence strongly suggests that the PENS Task Force included a number of individuals who oversaw or directly participated in torture or other cruel, inhuman, or degrading treatment that is allegedly banned by the APA.

Not surprisingly, given its membership, the PENS Task Force report concluded that "[i]t is consistent with the APA Code of Ethics for psychologists to serve in consultative roles to interrogation and information-gathering processes for national security-related purposes...." The Task Force report further echoed the Department of Defense cover story for employing BSCT psychologists: "While engaging in such consultative and advisory roles entails a delicate balance of ethical considerations, doing so puts psychologists in a unique position to assist in ensuring that such processes are safe and ethical for all participants."

Since the release of the PENS report, numerous articles in the press have documented that psychologists at Guantánamo and elsewhere have utilized abusive SERE techniques on detainees. (Jane Meyer's New Yorker article appeared one week after the PENS report.) All the while, the APA leadership has ignored the mounting evidence to the contrary and reiterated this flawed PENS premise, as you yourself did in response to such an article in the Washington Monthly: "[t]he Association's position is rooted in our belief that having psychologists consult with interrogation teams makes an important contribution toward keeping interrogations safe and ethical."

Every report of horrific abuses occurring at Guantánamo and elsewhere has not only cast doubt upon this basic premise of APA policy, these reports have repeatedly highlighted psychologists' abuse of psychological knowledge for purposes of cruel, inhuman and degrading treatment. Yet the APA has never made any public attempt to investigate such reports. Even if certain psychologists attempted to "keep interrogations safe and ethical," the OIG report demonstrates once and for all that BSCT and SERE psychologists, among others, were responsible for the development, migration, and perpetration of abuses.

It is time for the APA to acknowledge that the central premise of its years-long policy of condoning and encouraging psychologist participation in interrogations is wrong. It has now been revealed by the DoD itself that, rather than assuring safety, psychologists were central to the abuse. This remains true even if some psychologists made efforts to reduce such harm during their involvement in these interrogation contexts at some point in time. It is critical that APA take immediate steps to remedy the damage done to the reputation of the organization, to our ethical standards, to the field of psychology, and to human rights in this age where they are under concerted attack. The following steps will begin the process of correcting this egregious error by the organization and its leadership. We urgently recommend that:

1. The President of the APA acknowledge errors and abuses and chart a new direction re-emphasizing human rights. In light of the recent revelations, you, as President of the APA, should issue a clear public statement that acknowledges the errors made by APA, in both policy and public statements, and abuses perpetrated by psychologists; you should call on the association to go in a new direction, giving primary emphasis to human rights concerns in forging policy around ethics and national security.

2. The APA Board of Directors and Ethics Committee endorse the APA Moratorium on psychologist participation in interrogations of foreign detainees. It is critical to immediately disengage psychologists from any direct or supervisory participation in interrogations of individual detainees. Such a step would do much to bring the APA in line with the positions adopted some time ago by the American Psychiatric Association, the American Medical Association, and the American Nurses Association. Thus, the APA leadership should support and the Council of Representatives must, at the August Convention, pass the Moratorium on Psychologist Involvement in Interrogations at US Detention Centers for Foreign Detainees proposed by Dr. Neil Altman and scheduled for a vote at Council.

3. The APA Board of Directors encourage, support, and cooperate with the Senate investigations of detainee treatment. It is essential that the APA support and cooperate fully with the announced investigation of the Senate Armed Services Committee (SASC) into the role of SERE in the creation of abusive interrogation strategies, as well as the Senate Intelligence Committee's announced investigation into the CIA's handling of detainees in their custody. In fact, the APA Board of Directors should do what it can to expedite this and other external, non-partisan investigations of all localities that utilize BSCT psychologists.

4. The APA Board of Directors commence a neutral third-party investigation of its own involvement, and that of APA staff, in APA-military conflicts of interest. It is essential that the APA membership and the concerned public develop an in-depth understanding of how and why the APA accepted a rationale for psychologist involvement in interrogations that has been revealed to have been advanced by involved psychologists, and which permitted their continued participation and supervision of abusive interrogation processes. The concept of "legal, ethical, safe, and effective" has been exposed as a euphemism for psychologist oversight of abuse; these activities can only be considered "ethical" because the APA Ethics Code (Standard 1.02) was rewritten in 2002 to define complying with any law or military regulation as "ethical."

The membership has a right to know why, in the face of continually emerging sets of tangible evidence suggesting that the its policy was flawed and that psychologists were systematically employing expert psychological knowledge for purposes of abuse, the APA leadership refused to investigate, and continued to give cover for these abuses. (According to APA Ethics Director, Dr. Stephen Behnke, the BSCTs attach a copy of the PENS report to their training manuals.) Therefore, it is critical that an independent investigation be launched – conducted by individuals well-known for their commitment to human rights – into the development of APA policy in this area, and into the broader issues that likely contributed to a series of suspicious procedural activities. Among the issues this investigation must examine are:

a) the numerous procedural irregularities alleged to have occurred during the PENS process;

b) the role of the military and intelligence agencies in the formation and functioning of the PENS Task Force;

c) the reasons the APA and its leadership have systematically ignored the accumulating evidence that psychologists participating in interrogations are contributing to torture or cruel, inhuman, or degrading treatment, rather than helping to prevent it;

d) the overall nexus of close ties between the APA staff/leadership and the military and intelligence agencies, ties that may have contributed to a climate that permits undo influence of military and intelligence agencies in the creation of these policies and that encourages turning a blind eye to abuse;

e) the transformation of the APA Ethics Code, from one that protects psychologists' ethical conduct when such conduct conflicts with law and military regulations to one that protects psychologists who follow unethical law and military regulations.

Only such an investigatory process can restore the faith of the membership and the broader public in the APA and in the profession of psychology. To fail to act now would be to continue an organizational policy that maintains and protects psychologists' roles as the architects of what can only be interpreted as a torture paradigm; one that has intentionally violated the Geneva Conventions, our nation's values, and our professional ethics.

We look forward to your affirmation, acceptance, and action in regard to this call for immediate steps to remedy this saddening situation for our organization and our discipline.


[Affiliations listed for identification purposes only]
Stephen Soldz, Director, Center for Research, Evaluation, and Program Development & Professor, Boston Graduate School of Psychoanalysis; University of Massachusetts, Boston

Brad Olson, Assistant Research Professor, Northwestern University

Steven Reisner, Senior Faculty and Supervisor, International Trauma Studies Program, Mailman School of Public Health, Columbia University; Clinical Assistant Professor, Department of Psychiatry, New York University Medical School

Mike Wessells, Former Member, PENS Task Force; Columbia University

Rhoda Unger, Brandeis University

Uwe Jacobs, Director, Survivors International, San Francisco

Ed Tejirian, New York

Bernice Lott, University of Rhode Island

Jeffrey Kaye, San Francisco

Elliot Mishler, Professor of Social Psychology in the Department of Psychiatry, Harvard Medical School

Ghislaine Boulanger, Steering Committee,

Morton Deutsch, E.L. Thorndike Professor Emeritus of Psychology, Director Emeritus of the International Center for Cooperation and Conflict Resolution (ICCCR) Teachers College, Columbia University

Faye J. Crosby, Psychology Department, University of California, Santa Cruz

Marc Pilisuk, Professor Emeritus, the University of California; Professor, Saybrook Graduate School and Research Center

Marybeth Shinn, Professor of Applied Psychology and Public Policy, New York University

Stephan L. Chorover, Professor of Psychology, MIT

Mary Brydon-Miller, Director, Action Research Center, Associate Professor, Educational Studies and Urban Educational Leadership, College of Education, Criminal Justice, and Human Services, University of Cincinnati

M. Brinton Lykes, Associate Director, Center for Human Rights & International Justice,
Associate Dean, Lynch School of Education, Boston College

Ben Harris, Department of Psychology, University of New Hampshire

Barbara Gutek, PrEller Professor of Women and Leadership, Department of Management and Organizations, University of Arizona

Frank Summers, Associate Professor of Clinical Psychiatry and the Behavioral Sciences, Northwestern University Medical School

Kevin Lanning, Wilkes Honors College, Florida Atlantic University

Alice Shaw, San Francisco

Lila Braine, Professor Emerita, Barnard College, Columbia University
Stuart Oskamp, Professor Emeritus of Psychology, Claremont Graduate University

Linda M. Woolf, Professor of Psychology and International Human Rights, Webster University

Arlene Lu Steinberg, President, Division 39 Section IX, APA: Psychoanalysis for Social Responsibility

Lew Aron, Director, New York University Postdoctoral Program in Psychoanalysis and Psychotherapy

Scot D. Evans, Community Psychology, Wilfrid Laurier University

Susan Torres-Harding, Roosevelt University

Allen L. Roland, Sonoma, CA

Emily K. Filardo, Director, Women's Studies, & Associate Professor, Department of Psychology, Kean University

Maram Hallak, Borough of Manhattan Community College; the Association for Women in Psychology (AWP)

Anthony J. Marsella, Professor Emeritus, Department of Psychology, University of Hawaii

Barbara Eisold, New York Medical College

Kathleen Malley-Morrison, Department of Psychology, Boston University

Chrysoula K.E. Fantaousakis, Kean University

Karen Rosica, Faculty, Psychoanalytic Institute of Northern California; Director of Special Projects,

Hal S. Bertilson, University of Wisconsin-Superior

Ibrahim Kira, Access Community Health and Research Center, Dearborn, MI

Lynne Layton, Harvard Medical School

Allen M. Omoto, School of Behavioral and Organizational Sciences, Claremont Graduate University

Richard V. Wagner, Bates College

Wednesday, June 6, 2007

What about the other 300?

Slide 1. Slide 2. Slide 3. Slide 4.
Courtesy of Anant P. Raut

The New York Times gets it right:

Today's leader in the Times tells it like it is; Guantánamo is a national disgrace. The editorial is dead-on when it comes to the CSRTs, which it accurately describes as "kangaroo courts that give the inmates no chance to defend themselves, allow evidence that was obtained through torture and can be repeated until one produces the answer the Pentagon wants." As those who have followed Mr. Al-Ghizzawi's sad story know, he was found to be a non enemy combatant by his CSRT. It was only through a rigged do-over tribunal that he was classified as an EC.


Gitmo: A National Disgrace
Published: June 6, 2007

Ever since President Bush rammed the Military Commissions Act of 2006 through Congress to lend a pretense of legality to his detention camp at Guantánamo Bay, Cuba, we have urged Congress to amend the law to restore basic human rights and judicial process. Rulings by military judges this week suggest that the special detention system is so fundamentally corrupt that the only solution is to tear it down and start again.

The target of the judges’ rulings were Combatant Status Review Tribunals, panels that determine whether a prisoner is an “unlawful enemy combatant” who can be tried by one of the commissions created by the 2006 law. The tribunals are, in fact, kangaroo courts that give the inmates no chance to defend themselves, allow evidence that was obtained through torture and can be repeated until one produces the answer the Pentagon wants.

On Monday, two military judges dismissed separate war crimes charges against two Guantánamo inmates because of the status review system. They said the Pentagon managed to get them declared “enemy combatants,” but not “unlawful enemy combatants,” and moved to try them anyway under the 2006 law. That law says only unlawful combatants may be tried by military commissions. Lawful combatants (those who wear uniforms and carry weapons openly) fall under the Geneva Conventions.

If the administration loses an appeal, which it certainly should, it will no doubt try to tinker with the review tribunals so they produce the desired verdict. Congress cannot allow that. When you can’t win a bet with loaded dice, something is wrong with the game.

There is only one path likely to lead to a result that would allow Americans to once again hold their heads high when it comes to justice and human rights. First, Congress needs to restore the right of the inmates of Guantánamo Bay to challenge their detentions. By the administration’s own count, only a small minority of the inmates actually deserve a trial. The rest should be sent home or set free.

Second, Congress should repeal the Military Commissions Act and start anew on a just system for determining whether prisoners are unlawful combatants. Among other things, evidence obtained through coercion and torture should be banned.

And Congress should shut down Guantánamo Bay, as called for in bills sponsored by two California Democrats, Representative Jane Harman in the House and Senator Dianne Feinstein in the Senate. Both lawmakers are intimately familiar with the camp and have concluded it is beyond salvaging.
Their bill would close Gitmo in a year and the detainees would be screened by real courts. Those who are truly illegal combatants would be sent to military or civilian jails in the United States, to be tried under time-tested American rules of justice, or sent to an international tribunal. Some would be returned to their native lands for trial, if warranted. The rest would be set free, as they should have been long ago.

The Guantánamo camp was created on a myth — that the American judicial system could not handle prisoners of “the war against terror.” It was built on a lie — that the hundreds of detainees at Gitmo are all dangerous terrorists. And it was organized around a fiction — that Mr. Bush had the power to create this rogue system in the first place.
It is time to get rid of it.

Monday, June 4, 2007


1. A military commission is a court of limited jurisdiction. The jurisdiction is set by statute – the Military Commissions Act of 2006 (MCA).

2. Section 948d establishes the jurisdiction of a military commission. 948d(a) states:

(a) JURISDICTION.—A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter…when committed by an alien unlawful enemy combatant.

3. Section 948d(b) specifically states that military commissions “shall not have jurisdiction over lawful enemy combatants.”

4. Thus, in the MCA, Congress denominates for the purpose of establishing jurisdiction two categories of enemy combatants – lawful and unlawful. A military commission only has jurisdiction to try an unlawful enemy combatant.

5. Further, in Section 948d(c), Congress stated that a finding by a Combatant Status Review Tribunal (CSRT) that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction by military commissions.

6. In considering Section 948d, it is clear that the MCA contemplates a two-part system. First, it anticipates that there shall be an administrative decision by the CSRT which will establish the status of a person for purposes of the MCA. The CSRT can find, for MCA purposes, that a person is a lawful enemy combatant or an unlawful enemy combatant.

7. Second, once the CSRT finds that a person is an unlawful enemy combatant, the provisions of the MCA come into play. Such person may have charges sworn against him, those charges may be referred to a military commission for trial, and a military commission may try him. A strict reading of the MCA would appear to require that, until such time as a CSRT (or other competent tribunal) makes a finding that a person is an unlawful enemy combatant, the provisions of the MCA do not come into play and such person may not be charged, charges may not be referred to a military commission for trial, and the military commission has no jurisdiction to try him.

8. There is, of course, the counter-argument. The military commission itself is a competent tribunal (948d(c)) to determine if a person brought before it is an unlawful enemy combatant. While appealing, this argument has two major flaws:

a. First, in order to make the determination, the military judge would have to conduct a mini-trial to decide if the person is an unlawful enemy combatant. Or would s/he? Perhaps, since this determination might require factual determinations, the panel would have to make it. Congress provided in the MCA for many scenarios – none anticipated that the military commission would make the lawful/unlawful enemy combatant determination.

b. Second, a person has a right to be tried only by a court which he knows has jurisdiction over him. If the military commission were to make the determination, a person could be facing trial for months, without knowing if the court, in fact and in law, had jurisdiction.

9. Persons familiar with the court-martial system might state that jurisdiction is always assumed by the court-martial and it is attacked only by motion. That is true, but a court-martial is a different creature than a military commission. A soldier is in court in uniform with her first sergeant and company commander (who most likely preferred the charges) sitting in the courtroom. DD Form 458, the Charge Sheet, contains the following information in Block I – Personal Data: Name of accused, SSN, Grade or Rank, Pay Grade, Unit or Organization, Initial Date and Term of Current Service, Pay Per Month, Nature of Restraint of Accused, and Date(s) Imposed. So when a military judge at Fort Bragg looks at the Charge Sheet and the accused (Who is in uniform.), she knows that Private First Class William B. Jones is a member of Bravo Company, 3rd Battalion (Airborne), 325th Parachute Infantry Regiment, 82nd Airborne Division, Fort Bragg, North Carolina. She knows how much he is being paid, if he has been restrained, when he came on active duty this tour, and by comparing the unit to the name of the accuser in Block III – Preferral – she can see if it was PFC Jones’ company commander who preferred the charges.

10. Contrast this with the information on MC Form 458 in this case. The military judge is told that the name of the accused is Omar Ahmed Khadr. Three aliases are given. And, the last four of an unidentified acronym, the ISN, are given. There is nothing on the face of the charge sheet to establish or support jurisdiction over Mr. Khadr, except for a bare allegation in the wording of the Specifications of the Charges

11. The military judge is not ruling that no facts could be properly established concerning Mr. Khadr which might fit the definition of an unlawful enemy combatant in Section 948a(a) of the MCA. The military judge is ruling that the military commission is not the proper authority, under the provisions of the MCA, to determine that Mr. Khadr is an unlawful enemy combatant in order to establish initial jurisdiction for this commission to try Mr. Khadr.

12. The military judge is not ruling that Mr. Khadr may not, if his case is referred to trial after a proper determination, attack those facts in the elements of the offenses referred which might combine to show him to be an unlawful enemy combatant. Such an attack is a proper part of a military commission.

13. The military judge is not ruling that the charges against Mr. Khadr must be resworn. That would seem to be the more prudent avenue to take, but that issue is not currently before this commission.

14. If there were no two-step process required to try a person under the MCA, then a prosecutor could swear charges, the convening authority could refer charges, and a military commission could try a person who had had no determination as to his status whatsoever. That is not what Congress intended to establish in the MCA.

16. The charges are dismissed without prejudice.

Peter E. Brownback III
Military Judge