Monday, December 15, 2008
Case Name: SLITI et al v. BUSH et al
MINUTE ORDER denying  MOTION to Dismiss Improper Respondents. It is hereby ORDERED that the motion is DENIED. Signed by Judge Richard J. Leon on 12/15/2008.
The following transaction was entered on 12/15/2008 at 9:18 PM EDT and filed on 12/15/2008
Case Name: SLITI et al v. BUSH et al
MINUTE ORDER. It is hereby ORDERED that the government's request . . . for a general rebuttable presumption of accuracy, authenticity, and reliability for the government's information as to Hisham Sliti and Mohammed el Gharani is DENIED. Signed by Judge Richard J. Leon on 12/15/2008.
By Peter Finn
Washington Post Staff Writer
Monday, December 15, 2008; 6:46 PM
The Bush administration has decided to transfer three Algerian detainees to their adopted homeland of Bosnia and Herzegovina, a decision that partially complies with the order of a federal judge who said last month that five Algerians should be released "forthwith," rejecting government allegations that the men were dangerous enemy combatants.
But Lakhdar Boumediene, the Algerian whose name is associated with a landmark Supreme Court decision regarding the legal rights of those held at the Guantanamo Bay, Cuba, naval base, remains in limbo despite the U.S. District Court ruling and the imminent release of his countrymen.
Administration officials and other sources, who declined to be identified because of the sensitivity of the issue, said today that authorities at the base have begun to prepare for a transfer, a process that includes moving detainees to a pre-release facility at Guantanamo and their conducting exit interviews with the International Committee of the Red Cross. Three of the men have had exit interviews in recent days, sources said.
A Pentagon spokeswoman declined to comment, citing operational concerns.
The ICRC also declined to comment.
The State Department has been negotiating with the Bosnian government over the transfer of the five men, administration officials said, but authorities in Sarajevo have agreed so far only to accept those detainees who hold Bosnian citizenship -- Mohamed Nechle, Mustafa Ait Idir and Hadj Boudella. The governments continue to discuss the fate of two other Algerians, Saber Lahmar, a former legal resident of Bosnia, and Boumediene, who was stripped of his citizenship during a court proceeding in Sarajevo.
The men were seized by U.S. troops in Sarajevo in early 2002 despite the fact that a Bosnian court said there was insufficient evidence to sustain charges that they were planning to blow up the U.S. embassy there. In an action coordinated with the Bosnian government, the Algerians were detained by U.S. troops as they walked out of a detention center.
The men were flown to Guantanamo Bay, where they have been imprisoned since, even though the Chamber for Human Rights, the internationally-chaired top human rights body in Bosnia, called on the United States to leave four of the suspects in the country.
Boumediene subsequently sued President Bush for the right to challenge his detention in federal court, an action forbidden by the Military Commissions Act. In June, the Supreme Court ruled for Boudmediene, granting his request for habeas corpus in a 5 to 4 decision.
Hundreds of Arab fighters fought during the 1992-95 war in Bosnia, a former Yugoslav republic, and some stayed behind after the war and married Bosnian women. In the immediate aftermath of the Sept. 11, 2001, attacks, some American officials raised concerns that the country was a haven for Islamic extremists.
In October, the Justice Department withdrew without explanation the embassy bombing allegation, but it continued to charge that the men planned to travel to Afghanistan to attack U.S. forces.
U.S. District Judge Richard J. Leon said last month that the evidence against the men came from one unnamed source in a classified document, which he described as a "thin reed." Leon was the first judge to rule that the government had insufficient evidence to hold a Guantanamo detainee.
Leon ruled, however, that the continued detention of a sixth Algerian and former Bosnian citizen, Belkacem Bensayah, was proper. U.S.
officials said Bensayah had regular contact with senior military aides to Osama bin Laden and logged dozens of phone calls to Afghanistan after Sept. 11 and before his arrest by Bosnian authorities in 2001.
Judge Leon urged the government to "end this process" and not to appeal his decision to release the other five Algerians.
"Seven years of waiting for a legal system to give them an answer . . .
in my judgment is more than enough," Leon said.
Lawyers for the men welcomed the imminent release of the three detainees, but said the government should quickly secure a commitment from Bosnia that Boumediene and Lahmar can return to Sarajevo as well.
"We're encouraged, but the court said this should happen for all five men and I'm hoping that the United States is doing what the court instructed, which is taking all diplomatic and legal steps to get all of these men home," said Rob Kirsch, an attorney at the law firm of WilmerHale, which represented the six men in federal court.
The firm plans to appeal the continued detention of Bensayah.
Staff researcher Julie Tate contributed to this report
Sunday, December 14, 2008
Roger Fitch Esq • December 14, 2008
Our Man in Washington
Final gasp of the Bush regime … Legal uncertainties at Guantánamo after 9/11 conspirators plead guilty in death penalty case … Last minute regulations and orders wreak environmental vandalism – but delight the NRA … Washington goes on “pardon watch”
One of the torpid tribunals at Guantánamo sprang back to life on December 8.
The “9/11 Conspirators” were scheduled for a routine pre-trial hearing, but it turned out to be much more when the five defendants announced they were ready to sack their lawyers, drop pending motions, plead guilty and die martyrs.
For once, the government and the defendants agreed.
With little time left, the government desperately wants guilty pleas and death sentences, to provide a fait accompli for the incoming Obama administration.
However, the Military Commissions Act – unlike the Pentagon’s MCA Rules – requires a unanimous jury for the death penalty.
According to trial observer Jennifer Daskal, the judge, Col Stephen Henley, was unsure how to proceed and ordered briefings:
“Could he, or could he not, accept a guilty plea in a death penalty case? If he accepted the plea, would the sentencing jury still be allowed to impose death?
The briefs are due January 4, leaving the court just enough time to reconvene and take guilty pleas before Barack Obama takes office. If the court accepts the plea, and the plea is deemed valid, then double jeopardy kicks in… They have to be tried by this military commission or they cannot be tried by the US government for the specific charges relating to the 9/11 attacks.
If the pleas are made and accepted before January 20, President Obama could not simply announce an end to the commissions and transfer these cases to federal court.”
* * *
Even if President Obama doesn’t immediately suspend the military commissions and end the extralegal detentions at Guantánamo, Bagram and CIA black sites, it is hoped that January 20 will mark the end of the casual brutality – and sometimes, calculated cruelty – that defined the Bush administration.
That’s the hope of a group of US retired military officials who’ve had meetings with Obama aides.
It seems that Obama has a personal interest in ending “counter-terrorism” policies that rely on “enhanced interrogation”.
His Kenyan grandfather was tortured by the British during the revolt against colonial rule
* * *
The Supreme Court has granted certiorari in the case of al-Marri v Pucciarelli, a matter involving one of the most extreme executive actions since Roosevelt’s WWII internment of Japanese-Americans.
Ali Saleh al-Marri (pic), a legal US resident, has been held without charge in solitary confinement in a US Navy brig in South Carolina for five and a half years.
Al-Marri is likely to take its place with the Rasul/Al-Odah, Hamdi, Hamdan and Boumediene cases as black-letter law in the “war on terror” jurisprudence produced by Bush administration excesses.
* * *
George Bush has made Ali al-Marri’s life a misery, but Republicans are equally dangerous out of office.
Consider Lyndon Johnson’s newly-disclosed comments on Republican dirty tricks in 1968, recently in the news.
Robert Parry was reminded how, 40 years ago during a presidential election, Richard Nixon’s intermediaries sabotaged South Vietnamese participation in the Paris peace talks, which the lame-duck Democrat LBJ had called to end the war in Vietnam.
This they did by promising to get the South Vietnamese a better deal after January 20.
Instead, history records the Vietnamese got another six and a half years of bloody war.
The Democrats may have sent similar feelers to the Iraqi government this year concerning the proposed US-Iraqi Status of Forces Agreement.
Such signals would have undermined Bush’s hardline bargaining stance with Iraq and could help explain a SOFA that is reportedly more favourable to the Iraqis.
That’s politics. Yet, Republicans seem to surpass Democrats in executing dirty tricks.
Now, with six weeks to go till they lose power, and fuelled by unbounded arrogance, the Bush administration has put mischief in overdrive.
Last-minute regulations and executive orders are the key.
One Interior Department rule, for instance, purports to withdraw Congress’s authority to prevent mining on public lands.
A Bushwah claims to strip some federal employees of their collective bargaining rights.
The Republicans also sabotaged regulation of toxic substances and hazardous chemicals in the workplace.
It’s the Environmental Protection Agency and the Interior Department where Republican vandalism has been most pronounced.
For instance, the Bush administration – in a parting shot – forced through a regulation backed by the National Rifle Association to allow loaded and concealed weapons in national parks. That should provide great hunting for NRA members.
The most politicised regulatory areas, e.g. environment, will require Mr Obama’s urgent attention.
As TruthDig notes, “Not since 1861 have we watched the last gasps of an outgoing administration with such anxiety” and the blog warns of “ideological mischief” by the secretive Bush administration in its dying days.
Countless extralegal or merely unsavoury edicts of the Bush administration will need to be undone by Mr Obama.
The Bushwhacking of rules will give a heavily Democratic Congress a chance to use the regulation disallowance law, the Congressional Review Act.
It was passed by Republicans in 1996 and used once – against Bill Clinton.
It seems certain that Obama will have the numbers he needs in the Senate to overturn Bush regulations.
* * *
A lame-duck president can also issue pardons.
What if George Bush issued pre-emptive pardons for criminal acts of administration officials?
Jonathan Turley considers this question in the American Chronicle.
Slate speculates what individuals might be pardoned by Bush, while The Washington Independent’s Daphne Eviatar reports the legal controversy surrounding possible blanket pardons for torture.
Besides regulations and pardons, there are records and archives. Records can sometimes disappear, be altered or even – believe it or not – destroyed.
The National Archives felt obliged to send letters to Bush public servants warning them not to steal records as they leave their jobs.
ProPublica has helpfully noted which documents can be legally shredded by an outgoing government.
At the same time, “controversial” political appointees are being embedded in civil service jobs where they can continue to wreak havoc under a new administration.
As The Washington Post’s Dan Froomkin reports, the practice is called “burrowing”.
Naturally, public service unions are keen to have the names of the burrowers.
* * *
Department of Justice lawyers in Miami recently celebrated their first-ever conviction under the US Torture Act.
But the conviction of American-born Charles Taylor Jr for torturing the subjects of his dictator father in Liberia may have established a worrisome precedent: it could be used in future against officials of the present US government.
Law prof Peter Erlinder (pic) argues at Jurist, that the Taylor precedent could be used to prosecute Bush officials.
The Washington Monthly writer thinks the best way to start is to declare the Naval Observatory – home of the Vice-President, Dick Cheney – a crime scene.
Thursday, December 11, 2008
Levin, McCain Release Executive Summary and Conclusions of Report on Treatment of Detainees in
A major focus of the Committee's investigation was the influence of Survival Evasion Resistance and Escape (SERE) training techniques on the interrogation of detainees in
The Committee concluded that the authorization of aggressive interrogation techniques by senior officials was both a direct cause of detainee abuse and conveyed the message that it was okay to mistreat and degrade detainees in
Chairman Levin said, "SERE training techniques were designed to give our troops a taste of what they might be subjected to if captured by a ruthless, lawless enemy so that they would be better prepared to resist. The techniques were never intended to be used against detainees in
Senator McCain said, "The Committee's report details the inexcusable link between abusive interrogation techniques used by our enemies who ignored the Geneva Conventions and interrogation policy for detainees in
Chairman Levin also said: "The abuses at Abu Ghraib, GTMO and elsewhere cannot be chalked up to the actions of a few bad apples. Attempts by senior officials to pass the buck to low ranking soldiers while avoiding any responsibility for abuses are unconscionable. The message from top officials was clear; it was acceptable to use degrading and abusive techniques against detainees. Our investigation is an effort to set the record straight on this chapter in our history that has so damaged both
In the course of its more than 18-month long investigation, the Committee reviewed hundreds of thousands of documents and conducted extensive interviews with more than 70 individuals.Executive Summary and Conclusions [PDF]
Statement of Senator Levin
Part I of the Committee's Inquiry into the Treatment of Detainees in U.S. Custody - June 17, 2008
Part II of the Committee's Inquiry into the Treatment of Detainees in U.S. Custody - September 25, 2008
Friday, December 5, 2008
A Court for a New America
By ROGER COHEN
Of the many issues that have soured relations between Europe and the United States under the Bush administration, few have been as poisonous as America’s refusal to join the world’s first permanent war crimes court here. The snub has been seen as a symbol of U.S. contempt for the rule of law.
In one of his last acts as president, Bill Clinton signed the founding treaty of the International Criminal Court, but the signature never led to U.S. ratification. On the contrary, President Bush withdrew the signature.
This remarkable, and gleeful, “unsigning” was followed by an aggressive campaign to oblige countries to make a formal commitment, under threat of U.S. reprisals, never to surrender U.S. citizens to the court.
Tom DeLay, the former Republican House leader, caught the snarling Bush-Cheney view of the institution when he referred to a “kangaroo court” that was a “clear and present danger” to Americans fighting the war on terror.
As a result, I can think of no better place for President-elect Barack Obama to start in signaling a changed American approach to the world, and particularly its European allies, than the International Criminal Court. Even short of American membership, which would involve a tough battle in Congress, there is much he can do. But “re-signing” followed by ratification should be Obama’s aim.
The effect of U.S. rejection of the court, combined with the trashing of habeas corpus at Guantánamo Bay, has been devastating. Allies from Canada to Germany that are court members have been dismayed by the U.S. dismissal of an institution they see doing evident good.
Other smaller nations from Latin America to Africa, browbeaten by the United States on the issue of the court, have looked elsewhere for lost military or financial support. The American idea, grounded in legal principles, has been undermined.
It’s time to look again at the International Criminal Court. Over the past six years, the court has achieved what Philippe Kirsch, its Canadian president, called “a great deal of acceptability.” There are now 108 member countries, including every European Union nation except the Czech Republic, which appears set to join.
The United States stands alone among major Western industrial powers in rejecting the court: it has in effect deserted those powers’ attempt to mark a new century with a new commitment to eradicating genocide and crimes against humanity by ensuring there is no impunity for them. Washington has broken ranks with the Western liberal tradition of which it should be a cornerstone.
Initial U.S. fears that the court would be politically motivated have proved groundless. The court’s respect for the principle that it can exercise its jurisdiction only when national courts prove unwilling or unable to do so has proved unbending. Attempts to bring British forces in Iraq before the court for alleged crimes have been rejected by the prosecutor, Luis Moreno-Ocampo of Argentina.
Obama should now confront U.S. responsibility, and signal a new commitment to multilateralism, in his attitude toward the court. After the terrible decade of the 1990s, with its genocides in Bosnia and Rwanda and the loss there of a million lives while the United States and its allies dithered, it is unconscionable that America not stand with the institution that constitutes the most effective legal deterrent to such crimes.
The International Criminal Court has filed charges against alleged war criminals in Congo, Central African Republic, Uganda and Sudan since it started work in 2002. The first trial, involving a Congolese warlord, Thomas Lubanga, is set to begin in January.
But it is in Sudan that the incoherence of American policy toward the court has been most evident. The United States is against impunity for the genocidal crimes in Darfur, yet it is not a member of the court seeking to prosecute those responsible.
The court has issued arrest warrants for a former Sudanese government minister, Ahmad Harun, and for Ali Kushayb, a leader of the government-backed janjaweed militia. In July, it requested an arrest warrant for Omar Hassan al-Bashir, the Sudanese president, on charges of genocide, but judges are still reviewing whether to push ahead with the prosecution.
When I asked Brooke Anderson, Obama’s chief national security spokeswoman, about policy toward the court, I received this e-mail response: “President-elect Obama strongly supports the I.C.C.’s efforts to investigate and prosecute those responsible for atrocities in Sudan.”
That’s a good start and a good signal.
Obama should follow up by making sure that, even if court membership is not quickly attainable, the United States plays a part in the court’s 2010 review conference. This will address critical issues including how to define the crime of aggression, and may extend to whether the court can exercise jurisdiction in cases involving terrorism and drug-trafficking.
The next president should also ensure that the United States cooperates with the court in providing information and assisting in making arrest warrants effective. Its influence on the court’s credibility could be enormous.
Only by aligning America again with international law can the damage inflicted on America’s image and appeal by the Bush administration be undone.
Thursday, December 4, 2008
One of Barack Obama's first acts as president should be to instruct his attorney general to appoint an independent prosecutor to initiate a criminal investigation of former Bush Administration officials who gave the green light to torture.
At Obama's press conference on Dec. 1, he spoke of upholding America's highest values as he introduced Eric Holder as his choice for attorney general. Holder insisted there was no tension between protecting the people of the United States and adhering to our Constitution.
A few months ago, Holder was even more explicit. "Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the use of procedures that violate both international law and the United States Constitution," he said. "We owe the American people a reckoning."
The day of reckoning is fast upon us.
If Obama and Holder want to adhere to our Constitution and uphold our highest values, they must pursue those in the Bush Administration who violated that Constitution, broke our laws, and tarnished our values.
Read the words of Lt. Gen. Antonio M. Taguba, who investigated the Abu Ghraib scandal for the Pentagon. "There is no longer any doubt as to whether the current administration has committed war crimes," he concluded. "The only question that remains to be answered is whether those who ordered the use of torture will be held to account."
Despite Taguba's words and reams of documentation supporting his statement, there has been little discussion about holding officials accountable for their design and implementation of the torture program.
We need to make it clear, just as we do in cases with the most minor offenses, that actions have consequences. To simply let those officials walk off the stage sends a message of impunity that will only encourage future law breaking. The message that we need to send is that they will be held accountable.
A popular refrain in Washington these days is that criminal prosecutions would be an unnecessary look backward. Some argue that in order for the new administration to move forward, presidential pardons should be granted and a Truth Commission assembled to investigate the circumstances that gave rise to the brutal interrogations and deaths of prisoners in Afghanistan, Iraq, Guantanamo Bay and CIA black sites around the world.
But pardons would be the final refuge for an administration whose egregious violations of human rights have, for all too long, gone unpunished. And a Truth Commission is not applicable.
This is not Latin America; this is not South Africa. We are not trying to end a civil war, heal a wounded country and reconcile warring factions. We are a democracy trying to hold accountable officials that led our country down the road to torture. And in a democracy, it is the job of a prosecutor and not the pundits to determine whether crimes were committed.
Criminal prosecutions are not about looking to the past; they are about creating a future world without torture. They will be the mark of the new dawn of America's leadership and our new era of accountability.
Prosecuting these officials would help the United States regain its moral standing in the world and to prove our commitment to upholding international human rights standards.
In his first nationally televised interview, President-elect Barack Obama made this promise: "I have said repeatedly that America doesn't torture. And I'm going to make sure that we don't torture."
The best way to do that is to prosecute those who designed the torture policies.
Michael Ratner is president of the Center for Constitutional Rights and author of "The Trial of Donald Rumsfeld: A Prosecution by Book." He can be reached at firstname.lastname@example.org.
Sunday, November 16, 2008
US acknowledges it held 12 juveniles at Guantanamo
By MIKE MELIA – 29 minutes ago
SAN JUAN, Puerto Rico (AP) — The U.S. has revised its count of juveniles ever held at Guantanamo Bay to 12, up from the eight it reported in May to the United Nations, a Pentagon spokesman said Sunday.
The government has provided a corrected report to the U.N. committee on child rights, according to Navy Cmdr. Jeffrey Gordon. He said the U.S. did not intentionally misrepresent the number of detainees taken to the isolated Navy base in southeast Cuba before turning 18.
"As we noted to the committee, it remains uncertain the exact age of many of the juveniles held at Guantanamo, as most of them did not know their own date of birth or even the year in which they were born," he said.
A study released last week by the Center for the Study of Human Rights in the Americas concluded the U.S. has held at least a dozen juveniles at Guantanamo, including a Saudi who committed suicide in 2006.
"The information I got was from their own sources, so they didn't have to look beyond their own sources to figure this out," said Almerindo Ojeda, director of the center at the University of California, Davis.
Rights groups say it is important for the U.S. military to know the real age of those it detains because juveniles are entitled to special protection under international laws recognized by the United States.
Eight of the 12 juvenile detainees identified by the human rights center have been released, according to the study.
Two of the remaining detainees are scheduled to face war-crimes trials in January. Canadian Omar Khadr, now 21, was captured in July 2002 and is charged with murder for allegedly throwing a grenade that killed a U.S. special forces soldier. Mohammed Jawad, an Afghan who is about 24, faces attempted murder charges for a 2002 grenade attack that wounded two U.S. soldiers.
The study identified the only other remaining juvenile as Muhammed Hamid al Qarani of Chad.
The Saudi who hanged himself with two other detainees in 2006, Yasser Talal al-Zahrani, was 17 when he arrived at Guantanamo within days of the military prison opening in January 2002, according to the study.
About 250 prisoners remain at Guantanamo on suspicion of terrorism or links to al-Qaida or the Taliban.
Thursday, November 13, 2008
By Jane Sutton – Wed Nov 12, 5:57 pm ET
MIAMI (Reuters) – Former Guantanamo prisoners released after years of
detention without charge went home to find themselves stigmatized and
shunned, viewed either as terrorists or U.S. spies, according to a
report released on Wednesday.
The report by human rights advocates urged U.S. President-elect
Barack Obama to form an independent, nonpartisan commission with
subpoena powers to investigate the treatment of U.S. detainees in
Afghanistan, Iraq and the Guantanamo Bay U.S. Navy base in Cuba.
"We cannot sweep this dark chapter in our nation's history under
the rug by simply closing the Guantanamo prison camp," said study co-
author Eric Stover, director of the University of California at
Berkeley's Human Rights Center. "The new administration must
investigate what went wrong and who should be held accountable."
The authors at the center and at the Center for Constitutional
Rights interviewed 50 U.S. government officials, military experts and
former guards and interrogators, as well as 62 former Guantanamo
prisoners in nine nations.
Two-thirds of the former captives said they had psychological and
emotional problems, which the authors called consistent with being
held in extreme isolation for extended periods.
Only six had regular jobs, with many saying employers would not hire
anyone who had been held at Guantanamo.
"It doesn't matter that they cleared my name by releasing me. We
still have this big hat on our heads that we were terrorists," said a
Chinese Muslim former prisoner, one of eight who were settled in
Albania in 2006.
That group was still struggling to learn Albanian and had
abandoned hope of ever being reunited with their families, said the
report titled "Guantanamo and Its Aftermath."
The United States has released 520 men from Guantanamo since it
opened the detention camp for suspected al Qaeda and Taliban captives
after the September 11 attacks. Currently about 250 are being held.
It has not publicly acknowledged that any were there by mistake,
although intelligence reports and a former camp commander had said as
early as September 2002 that one-third to one-half of the 600
captives there at the time had no connection to terrorism, the report
The most notorious prisoners who are accused of plotting the
September 11 attacks, the Bali nightclub bombings and attacks on U.S.
embassies in Africa were not taken to Guantanamo until 2006, when
they were transferred from secret CIA prisons.
Many of the former prisoners said they had lost their homes and
businesses or that their families had piled up debts in their absence
because there was no one to support them.
One returned to find his wife had divorced him and remarried, another
to learn his father had been murdered and his estranged wife had
taken their children and moved away.
"Two Afghan respondents said that rumors of sexual abuse at
Guantanamo had stigmatized them and made it difficult to find a
marriage partner. One of these was also accused of being an American
spy and as a result was fearful of becoming a Taliban target," the
'I AM NOT A BEAST'
Others said they had received death threats.
Those who fared best seemed to be Afghans from tightly knit
villages, where several said they were greeted when they came home
with celebrations that even some local police attended.
"When I'm walking on the streets and I meet some people, they usually
say to me, 'We're sorry for you...' Everyone knows that I'm innocent,
that I'm not involved in any political activities," the report quoted
an Afghan shepherd as saying.
Among the 55 freed captives who discussed their interrogations, 31
said they were abusive and 24 said they had no problems. The majority
held "distinctly negative views of the United States" but many said
that was directed at the U.S. government, not the American people.
One-third said they ended up in U.S. custody after being sold for
bounties. Many viewed their time at Guantanamo as a test of their
Others said they only wanted the American public to recognize that
they were innocent.
"I just want to tell them that I am not this savage beast, what they
were told I am," one said.
(Editing by Michael Christie and David Storey)
Monday, November 10, 2008
1) OBAMA WINS
November 4, 2008
OBAMA'S VICTORY SPEECH
2) THE DETAINEE CASES
There's quite a bit going on these days; for the details, see the outstanding reports by Lyle Denniston at SCOTUSblog linked below.
But now the election has created a very interesting situation. In two months, the government's view of the law in these cases is going to change, and change a lot. The question is how much and how soon, and it's clear that DOJ is a mess that will require major house cleaning of both personnel and legal policy. It will be very interesting to see how the new administration deals with it.
Then there's DoD, and all I'm going to say about that is that I think it would be a VERY bad idea to keep Gates as Secretary of Defense -- DoD is almost as rotten as DOJ is.
November 7, 2008
US DEFENDS INDEFINITE DETENTION POWER
by Lyle Denniston
November 6, 2008
RULES SET FOR 113 DETAINEE CASES
by Lyle Denniston
November 5, 2008
SHOWDOWN OVER DTA'S FUTURE
by Lyle Denniston
November 4, 2008
CIRCUIT COURT: DTA PROCESS IS PROBABLY DEAD
by Lyle Denniston
D.C. CIrcuit --
November 4, 2008
BASARDH (ISN 252) v. GATES, No. 07-1192
On Motion to Hold Case in Abeyance or,
in the alternative, Dismiss Without Prejudice
Before: HENDERSON, RANDOLPH, and BROWN, Circuit Judges.
3) THE ELECTION RESULTS
From various sources...
* PRESIDENT / POPULAR VOTE (Associated Press)
Barack Obama (Democratic) - 65,431,955 (52.6%)
John McCain (Republican) - 57,434,084 (46.1%)
Ralph Nader (none) - 679,149 (00.5%)
Bob Barr (Libertarian) - 499,912 (00.4%)
Chuck Baldwin (Constitution) - 180,780 (00.1%)
Cynthia McKinney (Green) - 146,539 (00.1%)
[ 2004 - Bush 62,040,610 (50.7%), Kerry 59,028,444 (48.3%) ]
[ 2000 - Gore 50,999,897 (48.4%), Bush 50,456,002 (47.9%) ]
* PRESIDENT / ELECTORAL COLLEGE
Obama 365 (67.8%), McCain 173 (32.2%)
Those numbers assume that McCain's lead in Missouri holds up and Obama wins the
electoral vote for the 2nd Congressional District of Nebraska.
* US SENATE
Democrats 55, Republicans 40, Independents 2, PENDING 3
* US HOUSE OF REPRESENTATIVES
Democrats 255, Republicans 174, PENDING 6
* STATE GOVERNORS
Democrats 29, Republicans 21
* STATE LEGISLATURES
Democratic Control - 27
Republican Control - 15 (includes Nebraska, which is formally non-partisan)
Split Control - 8
Congressional Quarterly --
November 7, 2008
SOME HOUSE AND SENATE SEATS MAY TAKE WEEKS TO RESOLVE
November 8, 2008
THAT HUGE VOTER TURNOUT? DIDN'T HAPPEN
By David Paul Kuhn
November 9, 2008
2010 SENATE RANKINGS, PART I: RACES #21-#35
by Nate Silver
X) OP ED
November 9, 2008
SCHILLER - FREEDOM'S HYMN
by Scott Horton
San Francisco Chronicle --
November 7, 2008
ELECTION DAY REPORT
by Jon Carroll
October 23, 2008
THE CASE AGAINST A NATIONAL SECURITY COURT
by Jordan Paust
Mark R. Shulman, THE FOUR FREEDOMS: GOOD NEIGHBORS MAKE GOOD LAW AND GOOD POLICY IN A TIME OF INSECURITY, Pace University School of Law.
* * *
PROJECT TO ENFORCE THE GENEVA CONVENTIONS (PEGC)
Charles B. Gittings Jr.
Fort Bragg, California
Monday, October 27, 2008
October 27, 2008 2:02 PM EDT
GUANTANAMO BAY NAVAL BASE, Cuba - A military judge struggled to begin Guantanamo's second war crimes trial on Monday after a former aide to Osama bin Laden refused to participate, and his Pentagon-appointed lawyer said he would remain silent in solidarity.
Ali Hamza al-Bahlul, facing a possible life sentence, sat mutely at the defense table. His lawyer announced the prisoner was boycotting the trial because he did not want a military attorney and because the judge had denied his repeated requests to represent himself.
The appointed defense attorney, Air Force Maj. David Frakt, asked to be relieved in deference to his client's wishes, but the judge refused. Frakt then said he could not participate either.
"I will be joining Mr. Al-Bahlul's boycott, sitting silently at the table," said Frakt, who then refused to respond to several questions from the judge.
The judge, Air Force Col. Ronald Gregory, said Frakt was obligated to participate and that both the lawyer and defendant, despite their wishes, would be required to attend the hearings - even if they stay silent.
"The commission will not proceed with an empty defense table," Gregory said.
He was scheduled to begin picking a jury of U.S. military officers later Monday.
Al-Bahlul, who is charged with conspiracy, supporting terrorism and solicitation to commit murder, is the second test of the military commission system. The first trial - for former bin Laden driver Salim Hamdan - ended in August with a conviction and a 5 1/2-year sentence. A third detainee, Australian David Hicks, was convicted in a plea bargain before a trial.
Al-Bahlul said at a previous pretrial hearing that he wanted nothing to do with his trial and would attend only for the announcement of the verdict and sentence. He called the proceedings at this isolated U.S. Navy base a "legal farce."
The 39-year-old from Yemen allegedly created a recruiting video for al-Qaida glorifying its attack on the destroyer USS Cole in Yemen that killed 17 American sailors in October 2000. He is also accused of arranging for lead Sept. 11 hijacker Mohamed Atta to swear a loyalty oath to bin Laden.
Al-Bahlul, who has been held at Guantanamo since 2002, has acknowledged working for bin Laden but said he does not agree his actions constitute crimes.
The U.S. military says it plans trials for 80 of the roughly 255 men held at Guantanamo on suspicion of terrorism or links to al-Qaida or the Taliban. Eighteen prisoners are currently facing charges.
Thursday, October 16, 2008
Release of 17 Guantánamo Detainees Sputters as Officials Debate the Risk
Published: October 15, 2008
An urgent effort by the Bush administration to find a country willing to accept 17 detainees held at Guantánamo Bay, Cuba, has stalled because of a bitter dispute inside the government about whether the men are dangerous.
The administration stepped up its search for a new home for the detainees, members of the Uighur Muslim minority in western China, after a federal judge ordered them to be released inside the United States a week ago.
But because of the dispute within the administration, an American ambassador canceled a trip for international negotiations about the fate of the 17 men that had been scheduled to begin Monday.
People briefed on the issue said that the State Department, which is charged with trying to resettle Guantánamo detainees by coaxing other countries to accept them, argued that the Justice Department compromised diplomatic efforts with a court filing Friday that asserted that the Uighurs should not be released inside the United States. The filing described them as “a danger to the public” and as men who had been trained in insurrection.
“Based on what they were saying in the brief, it made it impossible to conduct negotiations,” said an administration official who spoke on the condition of anonymity because he had not been authorized to discuss the dispute.
The State Department has often been at odds with the Justice Department and the Pentagon over detainee issues, at times arguing that those agencies do not take sufficient account of Guantánamo’s impact on international relations.
The Uighur detainees have been at the center of a contentious legal confrontation that drew wide attention with a ruling from Judge Ricardo M. Urbina, on Oct. 7, directing that they be freed in Washington, D.C. The ruling that the men were not a danger to the United States was a defeat for the White House and was the first to order the freeing of Guantánamo detainees.
After an emergency filing by the Justice Department the next day, an appeals court temporarily stayed the ruling while it considered whether to grant a longer stay.
Clint Williamson, the State Department’s ambassador-at-large for war crimes issues who conducts Guantánamo resettlement talks with other countries, confirmed that he had changed his plans.
“I was scheduled to depart on another round of negotiations early this week,” Mr. Williamson said. “It was impossible to resolve some concerns we had about going forward at the time. As a result I canceled the trip.” He declined to say where he had planned to travel.
A Justice Department spokesman, Dean Boyd, declined to discuss the dispute, saying, “We don’t comment on internal deliberations.”
The temporary stay of Judge Urbina’s ruling had given provided time for renewed diplomatic efforts to resettle the men and to avoid a potential conflict between the judge and the administration.
The appeals court could rule as soon as Friday about whether it will extend the stay on Judge Urbina’s ruling or return the case to him. The State Department had been under great pressure inside the administration to find a country willing to accept the Uighurs.
Lawyers for the Uighurs, who were in Afghanistan in 2001, said the men would be persecuted if they were returned to China. The administration agreed that it would not send them there. But it said that since transferring 5 Uighur detainees to Albania in 2006, it had been unable to persuade governments to accept the other 17.
Diplomats say that many governments fear reprisal by China, which considers Uighur separatist groups terrorists.
Lawyers for the men have said that the Justice Department exaggerated its claims against the men in its legal arguments.
The people who have been briefed on the dispute said that the State Department also regarded the language describing the men as inflammatory and impossible to prove.
They said the department viewed efforts to find a country willing to accept the detainees as futile as long as the Justice Department argued that the men were too dangerous to be admitted into the United States.
The Uighur case has become a focus of many critics of the Guantánamo detention center. Jennifer Daskal, a counterterrorism specialist at Human Rights Watch, said that some administration officials appeared determined to block their release.
“The true fear,” Ms. Daskal said, “is not that they will pose a security threat, but that they will serve as living reminders of the administration’s mistakes in setting up Guantánamo.”