Justinian

Roger Fitch Esq • June 2, 2008

Our Man in Washington

Guantánamo unravelling … Bush admin sacks judge mid-trial for being too fair and independent … Canadian Supreme Court finds Gitmo process illegal … Administration planning election year war crimes spectacular … CIA station chief in Milan still on the run

The end of May saw a sensational development in the Guantánamo saga.

The Bush Regime did what even Charles Stuart never attempted: it sacked a judge mid-trial for showing fairness and independence and a disinclination to admit evidence derived from torture – the very thing the White House wants.

The Pentagon claimed that Omar Khadr’s Judge, Peter Brownback, was planning to retire, yet the Toronto Globe and Mail wondered, “why the judge would retire in the middle of an ongoing military tribunal case”.

Everyone seemed to forget that s.949b of the Military Commissions Act forbids “unlawfully influencing” a military judge.

The judge’s crime? Ruling for the defence in many of the 50 motions filed so far.

Another Gitmo judge, Keith Allred, must now be considering his position. He postponed Salim Hamdan’s military commission until after the Supreme Court has announced its decision in Boumediene because waiting for that decision “avoids the potential embarrassment, waste of resources, and prejudice to the accused that would accompany an adverse decision mid-trial”.

Brownback and Allred have been on the nose with the government since last year, when each refused to certify “enemy combatants” as “unlawful” on the Pentagon’s mere say-so.

As David Glazier reports, these dreadful delays in commission justice have the Wall Street Journal terribly upset.

It will all be added grist to the Congressional mill, where a House subcommittee has been holding hearings on Guantánamo with testimony from prominent Gitmo defence lawyers Clive Stafford Smith and Sabin Willett (pic) and even an abductee, Murat Kurnaz.

Another person testifying was Glenn Sulmasy, a stalking horse for the Bush adminstration’s planned national security courts, likely to be introduced in Congress if the government loses the Boumediene-Al Odah case.

National security courts are opposed by constitutional scholars including former federal prosecutors, but the idea has attracted the support of former Office of Legal Counsel head Jack Goldsmith and former Hamdan counsel Neil Katyal.

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As expected, the Canadian Supreme Court ruled in Omar Khadr’s favour in a high-profile May decision.

The court found the Gitmo process was illegal, basing its decision squarely on the opinions of the US Supreme Court in Rasul and Hamdan.

Aziz Huq thinks this may influence the US Supreme Court in its forthcoming Boumediene decision.

The Canadians had previously cautioned their diplomats that the US uses torture, and a Canadian judge had refused to return refugees to the US, finding that the US is a country that flouts treaties prohibiting refoulement to torture and mistreatment.

Even as the Guantánamo endgame nears, new commission defendants continue to be booked, with some prisoners delivered to court bruised.

Joanne Mariner has prepared a “cheat sheet” on the military commissions, now slightly out of date.

The main arraignment, for the Guantánamo Six, is set for June 6. The Bush administration is planning an election year spectacular, culminating in a September trial of the Six (now Five) for the so-called war crimes of attacking the WTC and Pentagon, with special telecasts for families of the 9/11 victims.

The 9/11 lawyers want to dismiss for unlawful influence, with evidence from ex-Chief Prosecutor Moe Davis (pic).

Meanwhile, Davis says supporting the defence cost him a medal.

A new group of commission defendants known as “the Faisalabad Three” has been charged with bomb-making in Pakistan, which (like New York) was never a theatre of war. Each is getting the “conspiracy” and “material support” treatment; neither charge being a crime under the law of war.

The same three men were charged in the 2004 military commissions struck down by the Supreme Court.

This leaves only two of Bush’s original designees not yet redesignated. Binyam Mohamed, one of the last two, expects to be charged any day.

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More military commission charges that have no connection with the war in Afghanistan were recently sworn against Ahmed Ghailani (pic).

Ghailani is already under indictment in New York for the same acts. Why wasn’t he handed over to the courts in New York when he was apprehended by the US?

Slate lawyer-blogger Phillip Carter sees a problem in trying someone for “war crimes” invented in 2006, where the acts involved occurred in 1998.

The Los Angeles Times and Miami Herald were among the few media to spot the apparent obstruction of justice by the CIA in delivering to the Pentagon for a military trial someone who was wanted in New York on a valid warrant for murder.

But judicial proceedings don’t suit the Bush White House. Clearly, Ghailani was withheld from the New York court’s jurisdiction so he could be coercively interrogated, and then “tried” in the only place where someone who has been coerced can be tried: a Bush Court created by the Military Commissions Act 2006.

At Guantánamo Mr Ghailani will not have the rights he would have had in New York, and there will be no problem of the Constitution and Bill of Rights being applied.

The government hopes to introduce tainted evidence, and in any case, media coverage will be filtered by the Pentagon.

Gone too is the danger of an independent judge and jury, and most importantly, there is no recourse to the independent-minded judges of the Second Circuit Court of Appeals.

Naturally, none of the charges against Ghailani is a crime known to the law of war. Yet even the Military Commissions Act requires that offences be “war crimes … triable by military commissions”, and the Hamdan plurality ruled that, to constitute a valid war crime, the offence has to have occurred after September 11, 2001, and in a theatre of war: no war, no war crime.

* * *

The ACLU recently discovered that the CIA runs recruiting ads next to every New York Times Gitmo story.

That’s not surprising. The agency badly needs new agents, as existing “operatives” are going on trial en masse (as well as in absentia) overseas.

At the moment, CIA agents are being tried in Italy for kidnapping an Egyptian off the streets of Milan.

One named defendant who faithfully followed John Yoo’s advice on torture abductions, sorry, extraordinary renditions, was the CIA station chief in Milan, Robert Lady.

He’s been on the run, however, since surfacing long enough to give Congressional Quarterly this heartbreaking interview about his plight in 2007.

The worst of it is, he lost his retirement villa in Italy. And he may have mislaid his wife.