Saturday, May 24, 2008

Roger Fitch

Roger Fitch Esq • May 17, 2008

Our Man in Washington

Guantánamo trials in crisis – legal adviser sacked for wanting torture evidence to be admitted and prosecutors quit in disgust over government meddling. Law of terror correspondent Roger Fitch reports

imageIt looks likely that Salim Hamdan, the notorious bin Laden driver, will be the first to go on trial – if anyone does – before a Guantánamo military commission.

It was, of course, Hamdan’s earlier military commission that the Supreme Court struck down as an unconstitutional fantasy of George W. Bush.

Hamdan is charged with “conspiracy” and “material support for terrorism” for acts predating the war, and neither charge is an offence under the law of war.

In fact, in Hamdan’s own case, a plurality of the US Supreme Court confirmed that “conspiracy” is not a war crime. The “crimes” were in any case created in 2006, long after they were said to have occurred.

Hamdan’s trial has now been postponed till after the Boumediene case is decided, making it less likely he will ever receive a trial, fair or otherwise.

At least hes the only Gitmo prisoner whose detention doesn’t, on its face, violate the Geneva Conventions.

All the other prisoners – nearly 800 – ever bailed up at Gitmo were held without the protections of the Third Geneva Convention, whose Article 5 requires a preliminary hearing to determine if a detainee is entitled to prisoner of war status.

Under “Geneva III” and implementing domestic law of the US – both extralegally suspended by Bush – those taken prisoner in a war are presumptively entitled to prisoner of war status until such time as they have received their Article 5 determination.

imageSalim Hamdan (seen here) has the distinction of being the only detainee who received this hearing, though it was conducted not by an independent “competent tribunal” but rather the same judge hearing the accused’s military commission, Navy Captain Keith Allred.

In December, Judge Allred ruled that Hamdan was not a PoW, and he later decided that Geneva IV’s civilian protections didn’t apply.

This left Hamdan with only the rights of Common Article 3, e.g. trial “by a regularly constituted court affording all the judicial guarantees … recognized as indispensable by civilized peoples”.

Still, Judge Allred’s grant of an Article 5 hearing provided a precedent in the ad hoc Guantánamo proceedings that will probably need to be followed in the cases of Omar Khadr and other detainees awaiting military commissions.

Already, six ethnic Uighurs from China who are held in Guantánamo are arguing before the Court of Appeals for the Armed Forces that they are entitled to Article 5 hearings, citing Allred’s Hamdan ruling.

* * *

At the end of April, the Guantánamo hearings resumed, with motions in the Hamdan case taking the spotlight. The Washington Post has more.

This time Hamdan’s very sanity was on the line in a motion challenging the Guantánamo proceedings.

imageWhile Hamdan had virtually withdrawn from his case, evidence was taken on his motions, e.g. the testimony of defence witness and former Chief Prosecutor Col Morris Davis (pic) that the prosecutors had been subjected to unlawful command influence.

The Miami Herald provided a copy of the motion to dismiss.

Knowledge of the motion is due entirely to Hamdan’s counsel sending copies to reporters, as the Office of Military Commissions refuses to post most motions on the commission website until after they have been argued and ruled on.

Instead, the motions and responses circulate by internal email and, when eventually posted, are buried in massive PDFs running to hundreds of pages.

By contrast, documents in the original commissions were individually posted and can still be viewed.

In addition to the testimony of former Chief Prosecutor Morris Davis, the defence put into evidence the statements of two Hamdan prosecutors, Lt Col William Britt and Lt Cmdr Timothy Stone.

imageTheir statements criticised the meddling of the commissions’ supposedly independent “legal adviser”, Brig Gen Thomas Hartmann (pic), and were given during an internal investigation that followed claims by Col Davis of interference in the prosecutions.

The Nation has more.

The criticism by prosecutors Britt and Stone comes after the transfer or resignation of at least five other disaffected prosecutors.

They include Major Robert Preston, Captain John Carr, Captain Carrie Wolf and Lt Colonel Stuart Couch. They withdrew, apparently complaining of the micromanagement and interference that also forced Davis out.

When Hamdan’s case reconvened on May 7 it was in the new “Expeditionary Legal Complex”, formerly known – without a trace of irony – as “Camp Justice”.

Ominously, nothing worked: sound, and even lights, failed.

Human Rights First has more on the day’s baleful events.

The following day, things continued to run off the rails for the Bush administration.

In the case of the Canadian Omar Khadr, captured when he was 15 and detained as an adult, Judge Peter Brownback threatened to suspend the trial unless the government produced a detailed log of the defendant’s treatment (e.g. interrogation) over five years.

Things are still looking grim for Khadr, as Scotusblog explains.

On the third day, Judge Allred ruled on Hamdan’s unlawful command influence motion. He decided that the detainee’s case could not proceed until the commissions’ legal adviser, General Hartmann, was removed.

imageInterestingly, Judge Allred accepted that Col Davis could reasonably believe Hartmann’s superior, Pentagon counsel “Jim” Haynes (pic), advocated both the use of torture and the use of evidence obtained by torture.

Later that day, the person Gen Hartmann advises, Commissions Convenor Susan Crawford, rejected his previous recommendation and dismissed the charges against one of the Guantanamo Six, Mohammed Al-Qahtani, a man whose published torture log is “missing” (see my post of April 25).

Crawford allowed the others to go forward, but within days, the lawyers for these defendants had filed a 127-page motion seeking dismissal on the basis of Hartmann’s interference.

That’s significant, as Hamdan lawyers have been arguing that he was tortured or at least assaulted.

A surprise in Allred’s ruling is the revelation that Hamdan’s lawyers made plea bargain overtures last year. When Hartmann intervened and tried to cut Col Davis out of the loop, Davis filed his complaint.

Somewhere in the process, plea discussions lapsed.

* * *

New torture letters have been produced from one Brian A. Benczkowski, a previously unknown “lawyer” in the Justice Department.

The letters purport to allow torture by the CIA on a sliding scale of need.

This attracted the condemnation of the law professor Jordan Paust, among others.

imageMeanwhile, the wash-up from John Yoo’s torture memo du jour (see my post of April 11) continues, with Jennifer Van Bergen taking a look at the abuse being heaped upon it.

As the original and most prolific of the torture-enabling DoJ lawyers, Yoo is heading to Washington to testify before John Conyers’ House Judiciary Committee.

He’s been subpoenaed to testify on June 26 about torture, around the time the Supreme Court should be ruling in the Boumediene-Al Odah detainee case.

Former AG John Ashcroft will also be fronting-up at Conyers’ (pic) committee and should have cogent testimony to offer on torture.

Ashcroft has been reported as distinguishing American water torture from the others (e.g. Spanish Inquisition, French in Algeria, the Khmer Rouge) along these lines:

“We don’t force the water, we pour – big difference!”

Wednesday, May 7, 2008


2008 MAY





Jalalabad, AF



Dechert LLP

Peter Ryan







Candace Hom





Oruzgan, AF



Yes, long journey


Matthew Dodge





Oruzgan, AF







Dekundie, AF


Tuesday, May 6, 2008


May 7, 2008

Lawyers for Guantánamo Inmates Accuse U.S. of Eavesdropping


One lawyer for Guantánamo <> detainees said he replaced his office telephone in Washington because of sounds that convinced him it had been bugged. Another lawyer who represents detainees said he sometimes had other lawyers call his corporate clients to foil any government eavesdroppers.

In interviews and a court filing Tuesday, lawyers for detainees at Guantánamo said they believed government agents had monitored their conversations. The assertions are the most specific to date by Guantánamo lawyers that officials may be violating legal principles that have generally kept government agents from eavesdropping on lawyers.

“I think they are listening to my telephone calls all the time,” said John A. Chandler, a prominent lawyer in Atlanta and Army veteran who represents six Guantánamo detainees.

Several of the lawyers, including partners at large corporate law firms, said the concerns had changed the way they went about their work apart from Guantánamo cases. A lawyer in Chicago, H. Candace Gorman, said in an affidavit that she was no longer accepting new clients of any type because she could not assure them of confidentiality.

The new filing, by the Center for Constitutional Rights, came in a 2007 lawsuit under the Freedom of Information Act in which Guantánamo lawyers are seeking records to determine whether they have been targets of surveillance.

The Justice Department declined to comment Tuesday. But in a legal response in March, its lawyers said they could neither confirm nor deny that detainees’ lawyers had been targets of such surveillance “because doing so would compromise the United States Intelligence Communities sources and methods.”

Justice Department officials have said in the past that they had not used their terrorist surveillance powers to single out lawyers but that telephone “calls involving such persons would not be categorically excluded.”

Since 2001, lawyers representing terrorism suspects not being held at Guantánamo have said they suspected government eavesdropping. Justice Department officials have said they intercepted such lawyers’ conversations rarely and inadvertently.

But some detainees’ lawyers say they believe there may be a comprehensive effort to monitor their communications at Guantánamo and elsewhere.

In the Tuesday filing in United States District Court in Manhattan, Thomas B. Wilner, a partner at Shearman & Sterling, said government officials insisting on anonymity had told him twice that he “should be careful in my electronic communications.”

In addition to being a leading Guantánamo lawyer, Mr. Wilner is an international trade law specialist. “You need to be very careful in what you say on the telephone,” he said in an interview.

Ms. Gorman’s court filing said that during a visit to the Guantánamo naval base in Cuba, her military escort “referred in conversation to personal information about my family that I had not disclosed to him,” leaving her to wonder how that information had been obtained.

Several of the lawyers said a program of surveillance would be consistent with obstacles they had encountered in representing detainees. In 2004, officials proposed “real-time monitoring” of lawyers’ interviews with Guantánamo detainees.

A federal judge barred that, saying that listening to lawyers’ meetings failed to recognize “the exceptional place in the legal system of the United States” for attorney-client communications.

Guantánamo officials say they monitor attorney-client meetings for the safety of lawyers with video cameras but that meeting areas are not wired for sound.

But several lawyers said their clients had told them that shortly after detainees met with lawyers, interrogators had asked the detainees about topics that had been discussed.

The Guantánamo spokeswoman, Cmdr. Pauline A. Storum, said interrogators were trained not to inquire about attorney-client meetings.

Shayana Kadidal, the lawyer at the Center for Constitutional Rights handling the freedom of information case, said there were many practical consequences of surveillance concerns. For example, he said, lawyers challenging the Bush administration’s detention policies must travel worldwide for meetings with witnesses to avoid potential telephone or e-mail monitoring.

Jonathan Hafetz of the Brennan Center for Justice <> at New York University <> represents two brothers from Qatar, Jarallah al-Marri, who is held at Guantánamo, and Ali Saleh Kahlah al-Marri <> , who is held at the navy brig in Charleston, S.C., the only person on the American mainland known to be held as an enemy combatant.

After 16 months during which Ali al-Marri was held incommunicado, Mr. Hafetz was permitted to discuss the case with him. In 2006, Mr. Hafetz said, a guard commander told Mr. Marri that he had to speak in English during a conversation with his lawyer.

Mr. Hafetz wrote government officials asking whether the English-only requirement indicated that his conversations with his client were being monitored.

Mr. Hafetz said the commander of the brig later said there was no military surveillance. Mr. Hafetz said he never received a response about whether other agencies had listened to their conversations.

Monday, May 5, 2008


It's motto: "Oops."

51st state? Try Guantanamo

Peter M. Ryan

is a Philadelphia lawyer with clients

at Guantanamo Bay

The world slaps us with Guantanamo as though it's a sack of wet nickels. Guantanamo is an albatross, wrapped in a scarlet letter, inside an Alcatraz. What to do with Guantanamo?

The Supreme Court is mulling the question. The president and the secretary of defense say they want to close Guantanamo. All three presidential candidates and five former U.S. secretaries of state want to close Guantanamo.

Fortunately, the answer is obvious. Congress should pass, and the president sign, legislation making Guantanamo the 51st state. Sorry, Puerto Rico, you had your chance. District of Columbia, you never had a chance.

Wake up, America! Shake off your recessionary gloom with Guantanamo, the Limbo State! Our Manifest Destiny has lain dormant since the Aloha State surfed into the Union in 1959. The turkey vulture, the Guantanamo State Bird, will devour a roadkill banana rat on the back of the 2010 Commemorative Quarter.

Consider the benefits of making Guantanamo El Grande Cincuenta y Uno:

Florida will be so distracted it may miss the November election.

Democrats and Republicans will love it. Democrats will thrill at a feeding frenzy for one . . . more . . . delegate. And with Guantanamo's high concentration of military voters (100 percent), two new Republican senators will likely travel to Washington, D.C., to tip the balance of the Senate.

Guantanamo is the model solution to the immigration dilemma. It has a big fence around it. The guys on the other side shoot anyone who tries to climb over.

Guantanamo will become a uniter, not a divider. Statehood will bring the detainees into the United States and keep them out of Leavenworth, Kan.

Most important, statehood will take the pressure off Rhode Island. The tiny Ocean State will finally have someone to push around.

Of course, some will say it can't be done. Nay, they will say, we have no right to make Guantanamo a state, because Cuba retains sovereignty and we have only a 105-year-old lease.

But the Guantanamo lease is no ordinary lease. For six years, this mild-mannered lease has knocked the stuffing out of our Constitution and the writ of habeas corpus. Surely, the legixecutives in the office of the vice president can make statehood happen.

Let's face it: Guantanamo already is part of the United States. Our flag flies there. Our law governs. Guantanamo is a true melting pot. Men and women of all ranks, races, creeds and colors in the Army, Navy, Air Force, Marines and Coast Guard work together at Guantanamo as a Joint Task Force.

Outside the armed services, there are scads of Filipino construction workers and a company of Jamaican firefighters. And, big fence notwithstanding, there are Cubans practically everywhere. They work at the McDonald's, the Subway and the Navy Exchange.

Then there are the detainees from 47 countries. In December, the government told the Supreme Court the detainees "enjoy more procedural protections than any other captured enemy combatants in the history of warfare." Pardon me while I indefinitely hold my applause.

Before 2004, the government insisted the detainees had no rights. With statehood, everyone will agree that the right to habeas corpus exists at Guantanamo. This will delight the Supreme Court, which won't have to decide the question.

Consider Haji Nusrat, internee serial number 1009. An 80-year-old stroke victim, he wobbled around Guantanamo with a walker for four years. He spoke in riddles, like "How could I be an enemy combatant if I was not able to stand up?" I never heard him say that he wanted to destroy our way of life. I think he just wanted our way of life. Or at least one of our rehab centers.

Consider, too, Haji Rohullah, ISN 798. He enjoyed the solitary amenities of Guantanamo's Camp V for more than five years. Just last week, we sent him home for more indefinite detention, this time by the Afghan government. He once tried to comfort a young man in a neighboring cell at Guantanamo, who said "Haji, all I see is a white wall and a white wall and a white wall and a white wall. I feel like I am in a grave." We eventually sent the boy back to Afghanistan, too, but some of his mind stayed in Guantanamo.

Finally, consider Ali Shah Mousovi, ISN 1154. He is a pediatrician - a nefarious profession. After he had spent two years in Guantanamo, an Air Force colonel told him: "I do find it hard to believe that someone could make an allegation against you, no matter how strong, and the United States government would imprison you and fly you all the way to Cuba. I find that difficult to believe."

Three cheers for Guantanamo, our 51st state! Its state motto is "Oops." One day, we might give the land back to Cuba. But we'll always have Guantanamo.

Peter Ryan, a lawyer at Dechert L.L.P. in Philadelphia, represents several Afghan nationals detained at the Guantanamo Bay Naval Station in Cuba.


By Sue Pleming

WASHINGTON (Reuters) - The Bush administration could announce plans by the end of its term in January to close Guantanamo prison and an upcoming Supreme Court ruling might be the impetus for this, senior U.S. officials and experts say.

The government is under international and domestic pressure to close the prison, which opened at the U.S. naval base at Guantanamo Bay on Cuba in January 2002 to house terrorism suspects caught after the invasion of Afghanistan.

"A decision could be made in this administration to announce the closure of Guantanamo. It is unlikely in the next nine months that Guantanamo could be physically (closed) but it is possible the policy decision could be taken to close it," said a senior U.S. official, who spoke on condition he was not identified because of the sensitivity of the issue.

Officials say planning and debate has intensified in recent months over how to deal with Guantanamo, which President George W. Bush acknowledges has tarnished America's image and human rights advocates say has damaged U.S credibility.

"Everyone is agreed that we need to find a way that eventually leads to the closure of Guantanamo, which is the president's policy decision. It is a very complicated matter," said National Security Council spokesman Gordon Johndroe.

The Supreme Court is expected to rule within weeks whether Guantanamo prisoners have rights under the U.S. Constitution even though they are held on the base in Cuba, where the United States has had a presence for about 100 years.

The court decision could influence whether the U.S. government announces plans to close the prison before Bush leaves office in January 2009, several officials said.

"If the Supreme Court concludes that the detainees have constitutional rights, then there would be little legal difference between holding them in Guantanamo or holding them on the (U.S.) mainland," one senior official said.

"It's possible the Supreme Court decision could provide an impetus to a policy decision to close Guantanamo," he added.


Most of the 280 prisoners at Guantanamo have been confined for years without charges. About 500 prisoners have been released, and the United States has said it intends to try 60 to 80 of those still in detention under war crimes tribunals.

Matthew Waxman, a former senior Defense and State Department official who dealt with detainee policy, has argued strongly for the closure of Guantanamo but he said the Supreme Court's decision could "cut both ways."

If inmates were now seen to have the same rights in Guantanamo Bay as on the U.S. mainland, then there could be little strategic reason to move them.

"The major criticism of Guantanamo is that it represents a so-called legal black hole," said Waxman, now a professor at Columbia Law School in New York.

Bush and other senior U.S. officials, including Defense Secretary Robert Gates and Secretary of State Condoleezza Rice, have all said they want Guantanamo Bay closed but they point to logistical and other problems.

There is also a drive to announce the closure before Bush leaves office rather than have his successor claim credit.

All of the presidential candidates have expressed a wish for Guantanamo to be closed and while the policy decision could be taken by this administration it will be up to them to implement it.

White House, Defense, Justice and State Department lawyers are still arguing the options, including the transfer of detainees to high security military prisons in the United States, moves that will be opposed by local politicians.

The Justice Department is concerned that transferring the detainees to the United States would result in an onslaught of litigation from detainees who would try to use the U.S. justice system to seek their release.

One option is the Disciplinary Barracks at Ft Leavenworth Army base in Kansas, but the state's senior Republican senator, Sam Brownback, has made clear he will fight that. A naval facility in South Carolina is also being considered.

Senior U.S. officials also hope countries reluctant so far to take home their own detainees will step forward once the U.S. government makes clear its intention to close the prison.

"Our allies talk a lot about concern of Guantanamo Bay but when they are asked to take their foreign nationals back, then they tend to stop talking," said Johndroe.

SOURCE: Reuters

Sunday, May 4, 2008

down under

Roger Fitch Esq • April 25, 2008

Our Man in Washington

A.J. Liebling was right – the press is asleep on the big stories affecting our freedoms … Bush lawyers looking for soft landings in the corporate sector – although Freddo still can’t find a job … Copyright violations by Pentagon in use of rap music to torture detainees

imageAs recently reported, a newly-released “torture memo” of the Justice Department’s former lawyer John Yoo purports to authorise the use of “enhanced interrogation techniques on terrorist suspects”.

Yet there would be no need to use these techniques, if the designated terrorists would only confess their crimes as gracefully as does George W. Bush.

For instance, when Mr Bush chose to admit he had been spying on Americans for years without warrants (under the Foreign Intelligence Surveillance Act, a felony attracting five years in prison), he did so before millions of Americans on national TV, and never looked back.

When he subsequently disclosed he had violated multiple international treaties by abducting, disappearing and detaining prisoners secretly in foreign prisons, for the purpose of illegal interrogation, Dubya did so at a well-publicised press conference where he announced the men were being rendered to the ultimate dungeon – Guantánamo.

He connected the dots for the media, and nothing happened.

Now, on a major US television network in prime time, Mr Bush has cheerfully acknowledged that he knew and approved of the events reported in my last post: the operation within the White House of what might be called an interrogation strike force.

With cabinet members present, it was a virtual torture subcommittee of the President’s “war cabinet”.

So much was revealed by ABC TV, but Dan Froomkin of The Washington Post put it best:

“Top Bush aides, including Vice President Cheney, micromanaged the torture of terrorist suspects from the White House basement.”

As Froomkin noted in a follow-up article, there was very little fall out among complacent Americans, even when their leader openly admitted – on national television – that he had approved torture.

Certainly the press wasn’t interested, except for such journals as The Washington Independent and, in a belated editorial, The New York Times.

It all seems to confirm what the noted American journalist A.J. Liebling said about the press: “it’s the weak slat under the bed of democracy.”

And who were these “top Bush aides”?

Well, Cheney, Condi, Rummy, Colin, AG Ashcroft and the CIA’s George Tenet. When you add in various flunkeys such as John Bellinger, then a mere National Security Council lawyer, but now the top State Department lawyer, and White House counsel Alberto Gonzales, you have a blue-ribbon board representing the top government departments and the White House itself.

What did they do? Well, they approved tailored torture programs for those “High Value Detainees” being tormented at Guantánamo and elsewhere in the name of freedom.

British QC Philippe Sands has continued his reporting on this, including extracts from the torture log of Mohammed al-Qahtani.

Of course, Mr Sands only has a copy of the torture log because it was leaked and published in Time Magazine three years ago. Sands was told by Major General Mike Dunlavey, the army’s former head of interrogation at Guantnamo, that the Pentagon had mysteriously lost their copy.

* * *

The misnamed Justice Department continues its downward spiral, under new leadership.

When I reported last year on Washington crime, I had no idea that a government crime wave would become a tsunami of lawbreaking, much of it criminal neglect.

According to the House Judiciary Committee, the department has been selectively prosecuting political enemies, and helping friends.

While it’s been busy helping Republicans win elections, the department has shown a singular lack of interest in enforcing domestic criminal sanctions, not only for torture and war crimes, but tax evasion and corporate violations.

Moreover, the Justice Department and FBI have been neglecting to investigate and prosecute the crimes of ordinary white-collar villains and scam artists across the country, while diverting resources to “terrorism”.

At the same time, the hyped “terror trials” are being lost, perhaps because they’re brought before the crime occurs, just as Gitmo “war crimes” prosecutions have been brought for things that happened before or outside a war.

At least, here in Washington, Main Justice claims it is investigating a lawyer’s crime, i.e. John Yoo’s “legal advice”, as The Nation reports.

Even the Court Circular, i.e. The Washington Post, would now like to hold Bush lawyers mildly accountable for their crimes, though not to Nuremberg standards.

* * *

Not surprisingly, Bush administration lawyers are busy looking for soft landings with private law firms and corporations who are not too fussy about their past misdeeds.

And, as I’ve often noted, no bad deed of a Bush Warrior goes unrewarded. So it was not unexpected when William “Jim” Haynes, the departed and unlamented General Counsel of the Defence Department, landed on his feet at the legal department of Chevron, the oil company with a tanker named The Condoleezza Rice.

Happily, Haynes has arrived just in time to help Chevron harvest the fruits of his own endeavours in Iraq.

Some unkind people suggested Jim left just in time to avoid a subpoena from the Senate.

While life with Chevron may be sweet, Haynes will find any travel outside the United States fraught with danger.

Certainly, it will be a comedown to go from directing 10,000 military and civilian lawyers to a mere 45 in Chevron’s corporate law department.

That’s better, however, than being unemployed.

For Alberto Gonzales, the outlook is bleaker. The New York Times reports that even though Freddo is a former Attorney General, he can’t find a job.

Scott Horton – who regrettably is packing up his Harper’s blog – contrasted the employment prospects of the Guantánamo whistleblowing lawyer, Lt Cmdr Diaz, with that of the suspects Haynes and Yoo.

* * *

In the event John Yoo’s torture memo should fail to provide the ammunition needed to pry loose Gitmo detainees facing military commissions and/or lifetime detention, the British human rights law firm Reprieve has a novel solution.

When all else fails, there is intellectual property law, and Clare Algar, an IP partner in a UK law firm, has been hired to look into the matter.

Noting that the music of rap artists such as Eminem was used extensively to terrorise detainees, Algar is interested in, “using copyright laws to challenge the music of certain artists being used as a torture weapon [and wants] to work closely with the artists” to do something about these shameless IP violations.

I fear this will not be enough. Either the Pentagon will pay royalties, or worse, will simply switch to the (shudder) generic, copyright-free, “wailing woman” music so favoured by Australian supermarket chains.