scotusblog

In late 2001, just weeks after the government first started taking prisoners in
the war on terrorism, Bush Administration officials chose Guantanamo Bay as the
place to hold those detainees in order to keep them beyond the reach of U.S. courts
and away from any terrorist activity. Now, more than six years and four Supreme
Court decisions later, the detainees for the first time will get a hearing in civilian
court on claims they are being held unlawfully; the first hearing is set to start
Oct. 6.

U.S. District Judge Richard J. Leon, who is working on what he calls a compressed
timetable, disclosed Thursday that he will hold the first habeas hearings on a day
that he said seems only fitting  the first Monday in October.  That, of course, is
the same day the Supreme Court returns to work after its summer recess, some four
months after its ruling in Boumediene v. Bush giving the Guantanamo detainees a
constitutional right to pursue habeas challenges to their captivity.

The Boumediene case (it gets its name from Lakhdar Boumediene, an Algerian, and
includes five others from that country, all of whom had been living in Bosnia) is
back in District Court, before Judge Leon. Mostly by coincidence, the judge said
Thursday, that will be the case that comes up first for a week of hearings in October.

While 14 other District Court judges share the more than 200 Guantanamo habeas cases
now on file, it appears that the 24 cases in Leons court are moving on the fastest
track. The judge said, at a four-hour hearing Thursday, that he remains committed
to conducting hearings in these cases  all 24  between now and Christmas.  Decisions
on whether any detainee wins release could come soon after that.

None of the detainees, however, is likely to be in court personally for their hearings.
The judge said he had tentatively decided against ordering the Pentagon to bring
any of the detainees to mainland U.S. for the habeas cases; he cited very obvious
and difficult practical problems.  That idea, he told detainees lawyers, was an
extremely hard sell.

He and the lawyers for both sides are exploring alternative ways for the captives
to take part: for example, by question-and-answer sessions under oath at Guantanamo
with videotapes shown in court, or by being linked to the courtroom through television
or telephone hookups.

Between now and next Wednesday, when he and the lawyers gather for an update on
planning, Judge Leon said he would issue a case management order laying out the
procedures for the habeas proceedings.

His tentative ruling against detainees in-person participation was one of a number
of issues on which the judge said he had pretty much made up my mind.  He also indicated
he will rule that the detainees do not have any constitutional right to face witnesses
who have given adverse evidence about them or any right to call witnesses on their
own, that he would allow both sides to offer hearsay evidence  that is, by individuals
not called as witness, and that he would insist on being notified in advance before
the Pentagon and State Department move out of Guantanamo any detainee in any of
his cases.

The judge also said he would issue an order requiring some higher-level State Department
official to file in his court a sworn statement on the efforts being made to get
other countries to take detainees so that they could be released from Guantanamo.

And he said he was pressing the Pentagon to take additional steps to allow the detainees
lawyers to more easily confer with their clients at Guantanamo, but he said he would
not go too far to intrude on operations of the Navy facility there: Its a military
base, he said, its not Vegas.

In something of a compromise among his tentative conclusions, the judge said he
would allow the cases to go forward under the federal habeas law  a request by the
detainees that gives their lawyers some wider options  but that he would not allow
procedures to become the equivalent of a full-scale criminal trial  a request that
Justice Department lawyers pressed.

After laying out his tentative conclusions, the judge launched into the lengthy
hearing with lawyers from both sides on the most difficult  and most disputed  issues
he will have to decide on the framework of the habeas cases.

As has been obvious in written court filings, the two sides are far apart on the
detainees plea for a right to require the government to supply them added information
it may have about them, on their request for a requirement that the government be
forced to look for and hand over favorable evidence it has about them, on detainees
lawyers access  and their clients access  to information that is either classified
or is considered otherwise sensitive by the government, on whether the government
must satisfy a very strict test for justifying decisions to continue holding detainees,
and on whether the government must tell detainees lawyers before it shifts any prisoner
out of Guantanamo.

Meanwhile, down the corridor from Judge Leons courtroom, U.S. District Judge Ricardo
M. Urbina was holding a hearing on the fate of 17 members of an often-persecuted
Chinese Muslim minority, the Uighurs, who are being held at Guantanamo.  The Pentagon
has decided that it will no longer seek to prove that five of them should remain
designated as enemies, but the government has not yet found countries other than
China to take them.

Judge Urbina chastised the government for saying in court papers that it was constantly
reviewing its chances for releasing the Uighurs, and yet had not been able to decide
whether all of them should remain at Guantanamo under the label enemy combatant.

The judge also suggested that he may agree to a request by the Uighur detainees
lawyers that they be brought personally to the U.S., to appear in court to defend
themselves against accusations of terrorist links.  Maybe that is an option, the
judge remarked.

Among the group whose cases are in Urbinas court is Huzaifa Parhat, who is seeking
release into the U.S. to live in the Washington, D.C., area temporarily while he
seeks to win his release from continued captivity.  The Pentagon has decided he
is no longer an enemy combatant, but the government is fervently opposing any attempt
to bring detainees to the mainland.

CCR Victory

The Commission's measures were issued in response to a petition 
filed on behalf of Mr. Ameziane on August 6 by the Center for Constitutional Rights
(CCR) and the Center for Justice and International Law (CEJIL). The IACHR first
issued precautionary measures covering all Guantanamo prisoners in 2002 and has
reiterated the measures several times since then. Yesterday's measures are the
first the Commission has issued with respect to a specific individual detainee and
call for the United States to take urgent steps to prevent further irreparable physical
and mental harm to Mr. Ameziane while he remains detained at the base.



Mr. Ameziane has been held without charge at Guantánamo for over six years and suffers
from various physical ailments as a result of his treatment and conditions of confinement,
including a severe loss of vision, for which he has consistently been denied adequate
medical care. U.S. authorities at Guantánamo also continue to subject Mr. Ameziane
to abusive interrogations and have previously threatened to transfer him to his
native Algeria, a country with a known record of human rights abuse where he fears
returning.



The Commission requested that the United States:



1. "Immediately take all measures necessary to ensure that Mr. Djamel Ameziane
is not subjected to cruel, inhuman or degrading treatment or torture during the
course of interrogations or at any other time, including but not limited to all
corporal punishment and punishment that may be prejudicial to Mr. Ameziane's
physical or mental health;
2. "Immediately take all measures necessary to ensure that Mr. Djamel Ameziane
receives prompt and effective medical attention for physical and psychological ailments
and that such medical attention is not made contingent upon any condition;
3. "Take all measures necessary to ensure that, prior to any potential transfer
or release, Mr. Djamel Ameziane is provided an adequate, individualized examination
of his circumstances through a fair and transparent process before a competent,
independent and impartial decision maker; and
4. "Take all measures necessary to ensure that Mr. Djamel Ameziane is not transferred
or removed to a country where there are substantial grounds for believing that he
would be in danger of being subjected to torture or other mistreatment, and that
diplomatic assurances are not used to circumvent the United States' non-refoulement
obligations."

The principal function of the Inter-American Commission on Human Rights is to promote
the observance and protection of human rights in and by member states of the Organization
of American States, including the United States.  It is the only international judicial
body with jurisdiction to hear cases of individual human rights violations committed
by the United States.  In doing so, it may issue precautionary measures to prevent
further harm to petitioners while their cases are pending.



"As a member of the Organization of American States, the United States must
heed the Inter-American Commission's urgent request to prevent further irreparable
harm to our client at Guantanamo.  For years the United States has shown disregard
for international law; now it has an opportunity to comply with the Commission's
order and finally  respect the basic standards of humane treatment and the absolute
prohibition of torture agreed upon by the global community."   said Pardiss
Kebriaei, staff attorney at the Center for Constitutional Rights.





FURTHER DETAILS

On August 6, 2008, Djamel Ameziane filed the first ever petition by a person detained
by the United States at Guantánamo Bay with the Inter-American Commission on Human
Rights (IACHR) to consider the torture, abuse, and other human rights violations
perpetrated against him during his six-year history of near-incommunicado detention
there. Among other abuses, Mr. Ameziane was subjected to a form of waterboarding.

While the U.S. Supreme Court's ruling in CCR and co-counsel's case Boumediene
v. Bush this June restores Guantánamo detainees' right to habeas corpus, neither
Mr. Ameziane nor any other Guantánamo detainee has yet had a hearing on the merits
of his case.

Among its several functions, the IACHR receives and investigates reports of violations
of the American Declaration of the Rights and Duties of Man, to which the United
States is a party.  If the Commission rules in favor of the petitioners, it issues
recommendations to the responsible government for relief to the victims, which are
binding. Such recommendations tend to be broad in scope, ranging from the payment
of monetary compensation, to the criminal prosecution of the parties responsible
for the human rights violations, to the modification of laws and policies .

Djamel Ameziane is an ethnic Berber from Algeria who fled his home country 16 years
ago in order to escape persecution and seek a better life.  He lived in Austria
and then Canada, where he applied for political asylum but was ultimately denied
refuge.  With few options, he traveled to Afghanistan, but as a foreigner in a land
soon torn apart by conflict, he was an easy target for corrupt local police who
captured him while he was trying to cross the border into Pakistan.  Mr. Ameziane
was then handed over to U.S. military forces, presumably for a bounty.



The U.S. military transported him first to the Airbase at Kandahar, Afghanistan
and then to Guantánamo in February 2002, where he was among the first prisoners
to arrive. After more than six years, he remains imprisoned without charge and without
judicial review of his detention.



U.S. personnel have subjected Mr. Ameziane repeatedly to brutal acts of physical
violence during his imprisonment. Guards put him through a form of waterboarding,
where they held his head back and placed a water hose between his nose and mouth,
running it for several minutes over his face and suffocating him, repeating the
operation several times.  In describing that experience he writes, "I had the
impression that my head was sinking in water.  Simply thinking of it gives me the
chills."  For over a year, Mr. Ameziane was held in solitary confinement in
a small windowless cell in Camp 6, one of the most restrictive detention facilities
in Guantánamo.



Another time, his entire body was sprayed with cayenne pepper and then hosed down
with water to accentuate the skin-burning effect of pepper spray. Guards then cuffed
and chained him and took him to an interrogation room, where he was left for several
hours, writhing in pain, his clothes soaked while air conditioning blasted in the
room, and his body burning from the pepper spray.



Mr. Ameziane has never been alleged by the U.S. government to have engaged in any
acts of terrorism or hostilities.

Mr. Ameziane's claims in his petition to the IACHR include violations of his
rights to freedom from arbitrary detention; freedom from torture and cruel and degrading
treatment, including the denial of necessary medical care, and religious humiliation
and abuse; protection of his personal reputation, and private and family life; and
the right to a judicial remedy for the violations of his rights.  The petition additionally
asks the IACHR to instruct the United States not to return Mr. Ameziane to his home
country of Algeria.

In order to leave Guantánamo safely, Mr. Ameziane requires a third country to offer
him protection. He is currently seeking resettlement in Canada, where he resided
for five years prior to his detention.

For a copy of the filing and a more detailed profile of Mr. Ameziane, click here

.

For more information on CCR's work on illegal detention, torture and abuse at
Guantánamo Bay, visit our website at www.ccrjustice.org 
.

The Center for Constitutional Rights is dedicated to advancing and protecting the
rights guaranteed by the United States Constitution and the Universal Declaration
of Human Rights. Founded in 1966 by attorneys who represented civil rights movements
in the South, CCR is a non-profit legal and educational organization committed to
the creative use of law as a positive force for social change.

The Center for Justice and International Law (CEJIL) is a non-profit, non-governmental
organization with consultative status before the Organization of American States
(OAS), the Economic and Social Council of the United Nations (ECO) and the African
Commission on Human and Peoples' Rights - www.cejil.org 
.

Binyam Mohamed

Analysis of the main points of the case

Queen on the Application of Binyam Mohamed

v.

Secretary of State for Foreign and Commonwealth Affairs

(August 21, 2008)

Open Judgment at: http://www.judiciary.gov.uk/docs/judgments_guidance/mohamed_full210808.pdf

Summary of Open Judgment at:

http://www.judiciary.gov.uk/docs/judgments_guidance/mohamed_summary210808.pdf

* * *

Note: This analysis is provided by Reprieve, and should not be considered an official report. However, the following are the main points made in the judgment:

1. The Foreign Secretary (David Miliband) is being given time to reconsider his position.

The ultimate effect of the judgment is to give David Miliband a week (until the next hearing, set for Wednesday, August 27, 2008) to consider what evidence he is going to provide to Binyam Mohamed’s defence. Previously the UK government took the following position in letters to us:

• “the UK is under no obligation under international law to assist foreign courts and tribunals in assuring that torture evidence is not admitted” and
• “it is HM Government’s position that … evidence held by the UK Government that US and Moroccan authorities engaged in torture or rendition cannot be obtained” by his British lawyers.

This position is untenable. The judgment gives him time now to reconsider his position, and hopefully agree with counsel as to what should be made available to the defence, before the second hearing. Indeed, “we were told that the Foreign Secretary would in any event wish to reconsider the position in the light of any findings we made….” (UK Judgment at 104)

If the Foreign Secretary cannot agree with the Special Advocates as to what should be revealed, the various factors militating towards disclosure “will have to be considered at the next hearing before any final [disclosure] order is made.” (UK Judgment at 89)

With respect to the materials that have been kept secret to date, “the Foreign Secretary would need to make a decision on each piece of information or each document or redacted document if the court thought it should be disclosed under the Norwich Pharmacal principles. The Special Advocates contended that no claim of Public Interest Immunity could like in respect of information which pointed to the commission of serious criminal offences, particularly those contrary to the rules of jus cogens in international law. We formed the view that the better courts was to hear that argument in the context of all the issues on public interest immunity.” (UK Judgment at 89)

If it comes to this, “we will, in the unique circumstances of this case, order the provision of the specific information broadly described as Type A in a form to be agreed or decided by us.” (UK Judgment at 99) This refers to the discussion on pages 86-87 and would include any evidence at all relating to Binyam Mohamed’s renditions, as well as to the personnel on board the flights; any evidence relating to Binyam Mohamed’s treatment, including the denial of UK access to him, all evidence related to the SyS visit to interview him, information provided to the US that would tend to prove that Binyam Mohamed was “a nobody, only a cleaner from London”, any other information about him, and any evidence that the UK has failed to provide Binyam Mohamed with the assistance that he should have been provided. (UK Judgment at 86-87) At this point, the judges will not order disclosure of broader information about what the UK knew generally about US renditions, or the treatment of other prisoners in the locations where Binyam Mohamed was held. (UK Judgment at 87-88)

2. Binyam Mohamed clearly was tortured, and the UK materials are crucial to prove this

Importantly, the Court concludes that the US rejection of Binyam Mohamed’s torture as “not credible” is, itself, “untenable”:

“The unreasoned dismissal by the United States Government of [Binyam Mohamed]’s allegations [that he was rendered and tortured] as ‘not credible’ as recorded in the letter of 22 July 2008 is untenable, as it was made after consideration of almost all the material provided to us.”

(UK Judgment at 97)

3. The scope of Binyam’s torture across two continents

The Court canvasses the allegations of torture that are at stake here. It should be noted that all of this evidence is effectively unrebutted, and the US has only even sought to respond to the allegation that a razor blade was taken to his genitalia.[1]

1. Torture in Pakistan:

It is “common ground that BM was detained unlawfully and incommunicado in Pakistan, he was denied access to a lawyer and his detention was not reviewed by a court or tribunal.” (UK Judgment at 42)

The judgment relates, “he was hung by a leather strap around his wrists so he could only just stand” (UK Judgment at 20) – this was a torture known as strappado by the Spanish Inquisition.

He was only allowed to the toilet twice a day, and given food every second day. (UK Judgment at 20)

He was told he would be rendered for torture in Jordan. (UK Judgment at 20)

The Pakistanis beat him and held a gun to his head (UK Judgment at 21) and he thought he was going to die.

2. Torture in Morocco

It is unrebutted that he was taken to Morocco by a CIA rendition plane on 22 July 2002. (UK Judgment at 28)

The court does not go into all the details of his torture, but mentions the following facts--

• He was “severely beaten” (UK Judgment at 28)

• He was “subjected to sleep deprivation” (UK Judgment at 28)

• “[H]is penis and private parts were cut with a scalpel.” (UK Judgment at 29)

The Court holds as follows:

“It was accepted on behalf of the Foreign Secretary that BM had established an arguable case that:

i) After being subject to cruel, inhuman or degrading treatment in Pakistan, he was unlawfully rendered from Pakistan to Morocco by the United States authorities.

ii) Whilst in Morocco he was subject to unlawful incommunicado detention and torture during his interrogation there by or on behalf of the United States authorities.

iii) He was unlawfully rendered by the United States authorities from Morocco to Afghanistan on 21 or 22 January 2004.

iv) He was detained unlawfully and incommunicado at the ‘Dark Prison’ near Kabul and thereafter at the United States Air Force base at Bagram.

v) He was tortured or subject to cruel, inhuman or degrading treatment by or on behalf of the United States authorities in the ‘Dark Prison’.”

(UK Judgment at 43)

As for why this was done, Binyam Mohamed: “was told that the United States wanted a story from him and he was to testify against others in relation to matters such as the dirty bomb.” (UK Judgment at 28)

He was questioned about material that apparently came from the UK. (UK Judgment at 29)

3. Torture in Afghanistan

He was rendered to Afghanistan on 21 or 22 January 2004. (UK Judgment at 29)

In the “Prison of Darkness” he “was deprived of sleep, blasted with sound, starved and then beaten and hung up. During this period he alleges that he was interrogated by the CIA and threatened with further torture if he did not provide the story that the United States wanted.” (UK Judgment at 29)

He was then “subjected to further mistreatment” in Bagram. (UK Judgment at 30)

4. The UK was clearly complicit in wrongdoing

The court concludes that the UK was legally complicit in the wrongdoing, sufficient to create a legal obligation to help right the wrong. The essential facts are as follows:

Nobody disputes that Mr. Mohamed was illegally held in Pakistan by the US, and that the UK nonetheless benefited from the illegality by interrogating him there. (UK Judgment at 19) The UK knew about Pakistan’s “poor human rights record.” (UK Judgment at 19) Yet the UK exploited this, apparently lodged no complaint, and did nothing to bring it to anyone’s attention to do anything about it.

Indeed, the UK told Binyam Mohamed they would help him only if he did what the US wanted (“cooperating” with them). Witness B asked what he could do to help Mr. Mohamed. (UK Judgment at 21) “It is clear that what [Witness B] said to [Binyam Mohamed] was, in effect, that the United Kingdom would not attempt to assist him unless BM persuaded him that he was cooperating fully.” (UK Judgment at 56)

Then the UK realized that he had been rendered somewhere else and did nothing to prevent it – indeed, continued to exploit it by sending questions to be asked of him. “It is clear that they [the UK authorities] must have appreciated that he was not in a regular United States facility, that the facility in which he was being detained and questioned was that of a foreign government (other than Afghanistan) and that the United States had direct access to information being obtained from him.” (UK Judgment at 56)

“The SyS was supplying information as well as questions which they knew were to be used in interviews of BM from the time of his arrest whilst he was being held incommunicado and without access to a lawyer or review by a court or tribunal.” (UK Judgment at 56)

“The conduct of the SyS facilitated interviews by or on behalf of the United States when BM was being detained by the United States” including when he had been rendered to another country. (UK Judgment at 57)

The UK then received information from the US that was clearly the fruit of his abuse. The UK received a report from the US in September 2002 (UK Judgment at 26) that apparently came from the torture chambers of Morocco.

The UK received another report in February 2003 (UK Judgment at 27) that must have been derived from Morocco, as he had been there for 7 months by then.

Thus, the Court concludes, the action of the UK “in connection with BM was far beyond that of a bystander or witness to the alleged wrongdoing.” (UK Judgment at 58)

Witness B initially wanted to assert his right to remain silent. There were “questions [that] would touch on commission of offences under the criminal law given the very wide scope of the International Criminal Courts Act 2001.” (UK Judgment at 49) These involved accessory to war crimes, and “assisting an offender or concealing the commission of an offence.” (UK Judgment at 49-50) War crimes includes “torture or inhuman treatment” as well as “wilfully causing great suffering, or serious injury to body or health.” (UK Judgment at 50) The Court would not hold this against him, but it does appear clear from the judgment that UK officials are exposed to criminal liability under the ICC Act.

5. What the UK knew and when

The UK tried to downplay what it knew and when. However, they clearly knew about rendition by the time Bisher al Rawi and Jamil el Banna were picked up in the Gambia and rendered to the Dark prison in Kabul. (UK Judgment at 22)

They realized that their “intelligence was coming from a detention facility which was outside and away from Guantánamo.” (UK Judgment at 23)

Here, Reprieve will shortly issue a report on what was public knowledge at what date, to demonstrate that the UK had to have known much more than they are saying.

6. Helpful materials in UK hands

There is elaborate reference in the judgment to the various things in UK hands that could help Binyam Mohamed. It must be remembered that the US authorities will not even agree that they rendered Mr. Mohamed, so the defence must expect to have to prove everything short of the sun rising in the East each day.

“It is in effect an acceptance by the Foreign Secretary that he has in his possession material that is potentially exculpatory or otherwise relevant to the proceedings before the United States Military Commission.” (UK Judgment at 34)

Indeed, the British materials assist Binyam Mohamed in proving his case in various ways, identified by the Court as “not only necessary but essential if [Binyam Mohamed] is to be able to put forward a defence to the very serious charges he faces, given the confessions made by him at Bagram…” (UK Judgment at 65) “Our reasons are set out in the closed judgment, but as can be seen from the summary of our findings … the information also provides the only support independent of [Binyam Mohamed] in some material particulars for his general account of events which led to the confessions.” (UK Judgment at 66) Some of these important materials are as follows:

• One fact that Mr. Mohamed’s defense must prove is the very fact that he was rendered to torture – which might seem incontrovertible, but the US Administration cannot admit it, as they have stated publicly so many times that they do not render to torture.[2] So this will be strongly contested in any US process. The fact “that he could not be located by the United Kingdom authorities and that access to him was denied to the United Kingdom authorities … support[] his account of rendition.” (UK Judgment at 65) In other words, since the US hid a British resident even from the UK government for two years when all other UK residents in places like Bagram and Guantánamo Bay were accessible to the UK, this is strong evidence that the US was acting illegally.

• “The information disclosing the provision of information to the United States authorities in October 2002 supported his account of what was put to him whilst being tortured in Morocco.” (UK Judgment at 65) What this means is that the statements Binyam Mohamed made in 2005 about UK materials being used to interrogate him in Morocco matches what the UK now admits it gave to the US, that was then used by the Moroccans to make Mr. Mohamed understand that everyone was against him, and his position was hopeless, so he might as well say what they wanted him to say.

• The main allegation against Mr. Mohamed is that he plotted with Jose Padilla to make a “dirty bomb” attack on the US. While this allegation was dismissed against Padilla in 2005, and has been dismissed as incredible by many commentators, the US still seeks to charge Mr. Mohamed with it in a military commissions. The UK information shows “that [Binyam Mohamed] at the outset said there was no dirty bomb plot (as position he has consistently maintained to his defense lawyers).” (UK Judgment at 65) Of course, this changed when he was tortured, but the fact that he told the UK this is strong evidence that his later ‘confessions’ were false, and were tortured out of him.

• The most important material discussed in the open UK Judgment is that “BM said the report of a dirty bomb was ‘the FBI perception’. The real story was that he had seen a file on a computer in Lahore and decided it was a joke – part of the instruction included adding bleach to uranium 238 in a bucket and rotating it around one’s head for 45 minutes.” (UK Judgment at 17-18)

• This is corroborated by a website that says exactly what Binyam related in 2002. See the website discussed at length at How (Not) to Build a Thermonuclear Bomb, http://port80.blogsome.com/2005/03/13/how-not-to-build-a-thermonuclear-bomb/ (“This morning, a piece has been making the rounds of the blogosphere claiming that a member on a terrorist forum has posted instructions for how to make a hydrogen bomb. *** This forum post is priceless. *** Perhaps the high point of this instructions is the author’s advice on enrichment of uranium hexaflouride: ‘First transform the gas into a liquid by subjecting it to pressure. You can use a bicycle pump for this. Then make a simple home centrifuge. Fill a standard-size bucket one-quarter full of liquid uranium hexafluoride. Attach a six-foot rope to the bucket handle. Now swing the rope (and attached bucket) around your head as fast as possible. Keep this up for about 45 minutes. Slow down gradually, and very gently put the bucket on the floor. The U-235, which is lighter, will have risen to the top, where it can be skimmed off like cream. Repeat this step until you have the required 10 pounds of uranium. (Safety note: Don’t put all your enriched uranium hexafluoride in one bucket. Use at least two or three buckets and keep them in separate corners of the room. This will prevent the premature build-up of a critical mass.)’ There are two primary problems with these instructions: The difference in mass between an molecule of uranium hexaflouride with U-235 and a molecule of uranium hexaflouride with U-238 is precisely 3 neutrons. Since these substances are chemically identical, they will tend to mix with currents in the bucket, and not separate “like cream.” Thus, the force exerted by a spinning bucket will not even begin to produce enriched U-235. Real centrifuge enrichment processes use thousands of extremely high speed centrifuges, one feeding the next, to create highly enriched uranium. *** At room temperature and pressure, uranium hexaflouride is a solid.

• Binyam Mohamed has been forced to confess that he got a passport from KSM, which is one of the allegations that has been made against him, and the UK materials prove that this is false, as Mr. Mohamed has reported to his lawyers. “The information had, for example, shown that he had one fake passport and not two (as is charged…” (UK Judgment at 65)

• The fact that Witness B assessed him as being non-compliant with the US, and ready to maintain what he was saying to the Americans (UK Judgment at 65; see also 18) is crucial. This shows why the US lost patience with him, thinking that the dirty bomb plot was real, and decided in July 2002 to render him for torture in a country willing to do things to him that the US could not. The US thought (erronesously) he knew more than he was saying, and why ultimately he was rendered for torture – even though what he was really doing was refusing to talk to the US (he did talk to the UK) because he knew his rights, and he had nothing related to them that he had to say.

• The UK questioned Mr. Mohamed about US reports (made to the UK) that he was saying that there would be future attacks by al Qaida. “He thought another major attack could happen – this was his assessment, but he did not know [one would] although the FBI thought he did.” (UK Judgment at 18) Again, this shows why the US rendered him. They thought he knew about an impending attack. Actually, what he had said was all he knew – that it seemed likely to him (as it did to most people) that al Qaida would not give up after 9/11 but would try other attacks.

These are only some of the factual proofs that can be made by the defence with access to the UK materials. There are others no doubt in the materials being held as secret. However, this shows how important these materials are.

7. The Disturbing US failure to investigate

The Court identifies a very disturbing failure on the part of the US to show any interest at all in the investigation of the allegations that Mr. Mohamed has been tortured.

The US has taken the position to the UK that “‘based on a review of records and consultations’ the allegations made by counsel to [Mr. Mohamed] that are reflected in [the Foreign Secretary’s] letter [to the US] were ‘not credible.’” (UK Judgment at 36) As noted above, the Court finds this decision by the US itself to be “untenable”.

The UK has a strong “positive obligation to ensure that torture was to be discouraged and its fruit not used in legal proceedings…. There were therefore the strongest public policy reasons for providing the information. The United States authorities had said there was no credible evidence in respect of the allegations. They refused to examine the allegations. They had failed to disclosure any material as to BM’s whereabouts or his treatment before his arrival at Bagram or even say where he was.” (UK Judgment at 103)

8. The Disturbing US failure to exculpatory materials

Ultimately, the UK obligation to help Binyam Mohamed with facts that could prove his innocence is grounded, in part, on the fact that the US is not fulfilling its own obligation to provide this information.

“[T]he Foreign Secretary no longer contends that the United States military prosecutors will disclose the [exculpatory] material.” (UK Judgment at 35; see also id. at 36, 62) “The explanation for this is set out in the closed UK Judgment.” (UK Judgment at 62) We do not know what this explanation is, but it is fascinating to consider how the UK came to the conclusion that the US could not be trusted to fulfil its obligation to provide Mr. Mohamed with the discovery that is his right. Presumably, since this is being kept secret, they know something about the process that we do not.

Even if forced to turn material over, the Court concludes that the US authorities will delay as much as possible: “there are grounds, given what has happened since information was discovered in the United Kingdom, which would lend support to the view that the United States Government will seek to delay as long as possible the disclosure of not only … the information and documentation provided by the United Kingdom Government, but other information and documentation which it undoubtedly also has or had in its possession.” (UK Judgment at 82)

Thus “despite the possibility of provision of the information in the processes under the United State Military Commissions Act at some point in the future, the Foreign Secretary should nonetheless now provide the information to [Binyam Mohamed]’s lawyers.” (UK Judgment at 80)

The Court appears offended by the extent to which the US government has been resisting disclosure, even to the extent of admitting where they held Mr. Mohamed for two years: “the United States Government has also, so far, refused to provide [Binyam Mohamed’s] lawyers with any information as to where he was or indeed what they contend happened to him in the period of 2 years between May 2002 and May 2004.” (UK Judgment at 28; see also id. at 64)

There can be no credible argument made that the US does not have this information: “it is inconceivable that there are no documents in the possession of the United States Government that relate to what happened to BM in the two year period from April 2002 to May 2004. There must be documents that record or evidence his movements, his custody and his treatment when interviewed. We have been given no reason why such documents cannot now be produced by United States military prosecutors and can think of none.” (UK Judgment at 81)

“We can think of no good reason why the materials have not now been made available by the United States Government to BM’s lawyers in confidence and subject to the strict conditions of secrecy in which part of the proceedings before the Military Commissions operate….” (UK Judgment at 97)

The Court goes into a lengthy discussion of just how wrong this is:

“It is of particular significance that the United States Government has refused to provide any information as to BM’s location during the period between May 2002 and May 2004. The fact that no explanation has been provide to date (despite the disclosure in the earlier proceedings) is a matter of serious concern in relation to the practical operation of the disclosure procedures before the United States Military Commission and a point towards the very real difficulties that BM’s lawyers may face in obtaining information under the United States Military Commissions proceedings. It might have been thought self evident that the provision of information as to the whereabouts of a person in custody would cause no particular difficulty, given that it is a basic and long established value in any democracy that the location of those in custody is made known to the detainee’s family and those representing him.

“To deny him this [discovery] at this time would be to deny him the opportunity of timely justice in respect to the charges against him, a principle dating back to at least the time of the Magna Carta and which is so basic a part of our common law and of democratic values.” (UK Judgment at 98)

In the closed sessions in court, it is apparent that the UK government has expressed its frustration and strong disapproval of the failure to disclose such basic information. “It is clear that the United Kingdom Government considers that such material should be made available. All its strenuous actions have been directed to that end. It is its view that the material should be made available by the United States Government which has so far declined to do so. It has therefore been compelled to resist this claim. We set out reasons for so concluding in the closed part of the judgment.” (UK Judgment at 98-99) It is reasonable to conclude that in the closed part of the hearing, the UK expressed its frustrations at the US inactions, and explained that the US insisted that it resist disclosure of materials that would embarrass the US.

9. Urgency of the action

This is related partly to the need to convince the Convening Authority not to proceed, and partly because “there is a continuing deterioration in BM’s mental health.” (UK Judgment at 81)

The Court is also rather offended that the Convening Authority has not seen fit even to respond to its request that she consider delaying the process in order to obtain the facts that may become available: “It is a matter of considerable regret that no response was received [from the Convening Authority], despite our request in the course of the hearing.” (UK Judgment at 40)

10. Quotes on torture

There are plenty of powerful quotes on torture:

“It does not seem to me that one can condemn torture while making use of the mute confession resulting from torture, because the effect is to encourage torture.” UK Judgment at 9, quoting A (No. 2) [2006] 2 AC 22 (Lord Bingham).

“the use of torture by a state is dishonourable, corrupting and degrading the [to] State which uses it and the legal system which accepts it.” (UK Judgment at 90)

“As the United States court put it in Filartiga v. Pena-Irala, (1980) 630 F.2d 876, ‘the torturer has become like the pirate and the slave trader before him, hostis humani generis, an enemy of all mankind.’” (UK Judgment at 91)

“it is a principle at the heart of our systems of justice that evidence of involuntary confessions obtained by such means are inadmissible at trial. The principle in relation to involuntary confessions dates back at least to the decision in 1783 in R v. Warickshall 1 Leach 263 at 263-4, where the court stated: ‘a confession forced from the mind by the flattery of hope, or by the torture of fear comes in so questionable a shape when it is to be considered as the evidence of guilt, that no credit out to be given to is; and therefore it is rejected.’” (UK Judgment at 95)

“It is therefore self evident that for many centuries the common law has excluded evidence obtained by torture or cruel, inhuman or degrading treatment which can never be used to secure a conviction of the victim.” (UK Judgment at 96)

“To hold that the court may turn a blind eye to executive lawlessness beyond the frontiers of its own jurisdiction is, to my mind, an insular and unacceptable view.” (UK Judgment at 96), quoting R v. Horseferry Road Magistrates Court ex parte Bennett [1994] 1 AC 42 at 67F-H (Lord Bridge).

“No statement that is verified as having been obtained through the use of torture shall be admissible as evidence in a legal proceeding…” (UK Judgment at 120), quoting Article 10, Inter-American Convention to

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[1] The US makes nothing more than a flat denial even there, saying that there were no signed of razorblading on his penis – which ignores the fact that torturers use razors for the very reason that, as all shavers know, cuts do not leave obvious scars, and more sophisticated methods must be used to assess the damage.

[2] For example, Secretary of State Condoleezza Rice stated categorically as follows: “The United States does not transport, and has not transported, detainees from one country to another for the purpose of interrogation using torture.” Secretary of State Rice, Remarks upon her Departure for Europe, US Dept. of State Website (Dec. 5, 2005), http://www.state.gov/secretary/rm/2005/57602.htm.

Roger Fitch

Roger Fitch Esq • August 8, 2008

Our Man in Washington

Civil War banditti and jayhawkers are the basis of today’s “material supporters of terrorism”. Be careful – Bush law says it’s a “war crime” to shoot at Americans

The Bush administration has secured a conviction of Salim Hamdan, one of Osama bin Laden’s drivers.

Hamdan was the designated guinea pig in a program to remodel the US constitution and international law.

The ultimate goal? Making a military crime out of unfriendly acts around the world against American interests, as far back as 1996.

Why military? Well, because the president claims the right – if there is a war underfoot somewhere – to keep secrets, deny legal protections and run roughshod over courts, congress and defendants.

He gets to make up the rules, and with rigged trials, including tortured confessions, he always wins.

True, in Hamdan’s case “conspiracy” failed, but five of the specifications for material support succeeded.

The UK Independent has a report on the foreign reaction.

Historian-blogger Andy Worthington has more.

The high street newspapers will no doubt claim that, with Hamdan convicted, “the system” is working, but what system is that?

Basically, it’s the same one used on David Hicks in 2007. That effort succeeded because Hicks pleaded guilty and there was no appeal.

Hamdan (seen here in a 1999 snap), like Hicks, received a light sentence, perhaps to deter an appeal that would overturn the whole process .

He’ll be eligible for release from custody in five months from now.

Consider the following:

• The offences in the Military Commissions Act 2006 were only created years after the acts that were made crimes, in violation of the US constitution as well as international law;

• The offences are not violations of the law of war as the MCA claims, and the Supreme Court required in the appeal against Hamdan’s previous “presidential” commission;

• The jury findings on which Hamdan was convicted do not specify acts occurring after September 11, 2001, as the Supreme Court required in Hamdan’s case;

• The trial itself did not conform to the requirements of the US constitution or international law, primarily because coerced and secret testimony was admitted, hearsay and self-incrimination;

• The appeal, if any, will not satisfy requirements of the US constitution or international law.

Few of these issues were included in media reports of the Hamdan case.

The Washington Post, at least, noted that a defence witness had “testified that an ‘armed conflict’ between the United States and bin Laden’s organization began with the Sept. 11, 2001, terrorist attacks”.

“By that point, Hamdan had worked for bin Laden for at least five years. That is a potentially key legal issue because the terrorism conspiracy charges against Hamdan declare on their first line that he violated the ‘laws of war’. If the United States and al-Qaida weren’t at war, the defense argues, Hamdan’s service as one of bin Laden’s seven drivers was not a war crime.”

But another issue derailed the conspiracy charges. Even though the Department of Justice had sent its own prosecutors to Guantánamo as political fixers, the conspiracy charge against Hamdan hit a brick wall when Judge Keith Allred insisted on using conventional law-of-war definitions in his jury instructions.

To the apparent surprise of the DoJ lawyers, Judge Allred ruled that Hamdan’s act in carrying missiles around in a car had to be directed at killing civilians.

Not only did the prosecution have no evidence of that, they had actively tried to show it was US military personnel who were targeted.

With the omission from jury instructions of the fundamental “war against terror” construct the Bush Gang has argued for seven years – the theory that shooting at Americans is somehow a “war” crime – the conspiracy prosecution fell in a heap.

As for “material support”, how did that come to be a “war crime”?

The MCA recites that only existing international war crimes have been adopted in the Act, yet no one had ever heard of “material support” as a war crime before the MCA.

Mr Bush omitted it from his laundry list of faux crimes included in the “presidential” military commissions that were declared unconstitutional by the Supreme Court in 2006.

Nevertheless, Bush’s lawyers argued, and Judge Allred accepted, that material support was a recognised war crime.

Why? Well, Judge Allred seems to have found persuasive the fact that …

“The language of the General Orders establishing the jurisdiction for military commission during the Civil War suggests the existence of an offence similar to ‘providing material support for terrorism’ existed during that conflict: ‘There are numerous rebels … that … furnish the enemy with arms, provisions, clothing, horses and means of transportation; [such] insurgents are banding together in several areas of the interior counties for the purpose of assisting the enemy to rob, to maraud, and to lay waste of the country. All such persons are by the laws of war in every civilized country liable to capital punishment (emphasis added). Numerous trials were held under this authority”.

The source of this authoritative citation? The dissent of Justice Clarence Thomas in the Hamdan decision, quoting from “an 1894 Congressional document”.

The government also relied on an 1865 opinion of Abraham Lincoln’s Attorney General:

“To unite with banditti, jayhawkers, guerrillas or any other unauthorized marauders is a high offence against the laws of war; the offence is complete when the band is organized or joined.”

So there you have it: banditti and jayhawkers were prosecuted during the US Civil War. They were obviously the material supporters of their day.

* * *

In fact, if a war crime has occurred, it is the war crime of failing to provide Hamdan a fair trial.

That issue was canvassed in a 2005 Wall Street Journal series by Jess Bravin, who also wrote about the US punishment of Japanese for the very acts of coercion revealed in Hamdan’s case.

Australian legal opinion has backed this analysis of war-crimes-trial-as-war-crime (see my post of June 15, 2007).

* * *

Maybe Guantánamo and all it represents will shortly no longer be a burden for the United States.

Saudi Arabia has announced that it is having five prisons built to replace Guantánamo.

The builder? The Bin Laden construction company.

Reply to Injunction-appellate court

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

ABDUL HAMID AL-GHIZZAWI

Detainee,

Guantanamo Bay Naval Station

Guantanamo Bay, Cuba;

Civil Action No. 06-5394

Petitioner No. 08-5136

v.

GEORGE W. BUSH, et al.,

Respondents. )

)

REPLY TO MOTION FOR INJUNCTION

__________________

Submitted this 5th Day of August, 2008.

I. INTRODUCTION

Al-Ghizzawi filed his present emergency application with this Court on July 11th for the purpose of compelling the Government to afford him adequate medical treatment, immediate disclosure of his medical records (the latter relief which would be available to any convicted prisoner in America let alone a man not even accused of a crime) and, relief from the cruel isolation of Camp 6, so that Al-Ghizzawi can assist his counsel in his own habeas proceedings.

Notwithstanding the Government’s arguments to the contrary this Court has plenary jurisdiction to review preliminary injunctions. See 28 USC Section 1292(a)(1). The failure of the District Court to hold a contested hearing, or even to ask the Government for the underlying back-up medical records for in camera review, warrants the injunctive relief Al‑Ghizzawi now seeks in order to ensure that the habeas corpus remedy to which the Supreme Court held that he and other Guantanamo prisoners are entitled in Boumediene v. Bush 128 S.Ct. 2229, 2274 (2008) does not become a dead letter because of continued stonewalling and Orwellian word games on the part of this Government behaving in absolute contempt of the law. Since filing his most recent motion for preliminary injunction in this Court on July 11^th, Al-Ghizzawi’s condition has significantly deteriorated per the observation of counsel as set forth in Al-Ghizzawi’s July 17th filing in Response to the Governments motion which counsel filed while at Guantanamo and immediately after meeting with her client.

This Court should enter the emergency injunction sought by Al‑Ghizzawi to maintain the status quo by ordering the Government to release Al-Ghizzawi’s complete medical file to counsel, to provide meaningful and adequate medical treatment without delay and to remove Al-Ghizzawi from the complete isolation of Camp 6 to which he has been subjected for the past 20 months. Contrary to the machinations of the Government, these issues are fully ripe for review now and with respect to the instant motion, Al-Ghizzawi’s position is that to compel full briefing would be elevating form over substance when, quite probably, the life of a man whom the Governments own Combatant Status Review Tribunal (CSRT) found to be innocent of posing any connection to terrorism or threat to the United States hangs in the balance. However, counsel is fully prepared if this Court, in its discretion, prefers full briefing to resolve this issue on an expedited briefing schedule.

As the Government now concedes, Al-Ghizzawi’s two appeals(^[1]) need not be consolidated with any other case because Al-Ghizzawi's case is sui generis. Nonetheless, the Government makes the extraordinary assertion, without support (of course) that Al-Ghizzawi’s motion for injunctive relief would somehow greatly impact 200 other habeas cases (if not bring the defense of the Republic to a halt). This can only be the case if those 200 other cases involve men themselves dying at Guantanamo who are unable to give assistance to their counsel because of their own dire medical and mental condition. Even if this disturbing assertion by the Government is believable the Supreme Court in Boumediene held that the unconscionable delay of over six years and counting, which is entirely of the Government’s causing, can no longer be countenanced.

The Supreme Court has twice held that Al-Ghizzawi and others held at Guantanamo are entitled to protections of the Geneva Conventions (an argument raised in Al-Ghizzawi’s Original Motion herein and in the District Court but ignored by both the Government and that Court). Despite brazenly unlawful executive fiat to the contrary, such Geneva Convention protection mandates not only humane treatment but that Al‑Ghizzawi be afforded appropriate treatment in a civilian facility if the military facility cannot provide it. The military has clearly shown over these many years that it is completely unwilling and/or unable to provide proper care for Al-Ghizzawi thus necessitating the relief of a civilian facility as mandated by the Geneva Conventions.

The Government’s brazen attempt to minimize the scope of the Supreme Court’s decision in Boumediene by claiming, without any authority, that a habeas corpus remedy can somehow be afforded to Al-Ghizzawi without any requirement that Al-Ghizzawi be afforded any meaningful rights or procedural safeguards to even stay alive is not only astonishing but without merit, and wholly at odds with Boumediene. To put it even more bluntly, the remedy of a habeas corpus hearing is meaningless to a dead man (or a man who is forced into mental collapse).

In addition, the Government’s desperate argument that, in the face of the Supreme Court’s finding that Section 6 of the Military Commissions Act purporting to strip the federal courts of jurisdiction to entertain habeas corpus petitions is unconstitutional on its face, that nonetheless the Government can still apply Section 7’s stripping of jurisdiction is wrong, if not iniquitous. If this is the Government’s argument, then Section 7 is unconstitutional either on its face or as applied to Al-Ghizzawi, without question.

If this Court does not act quickly to reign in the Government from its medical neglect of Al-Ghizzawi he will soon either be dead or permanently mentally incapacitated. In such state, of course, he will hardly be able to assist his counsel in his own habeas proceedings. The attempt by the Government to muddle his sui generis situation – Al-Ghizzawi's CSRT found him not to be an enemy combatant and the affidavit of a member of the CSRT panel that so found was the basis for the U.S. Supreme Court's granting of reargument in Boumediene – with those of the over 200 other prisoners held at Guantanamo should be seen for the dilatory tactic that it is. Providing the relief Al-Ghizzawi seeks would have minimal impact on the military’s operations at Guantanamo, and in some respects, even the District Court agreed that affording him access to his own medical records would constitute almost no burden to the Government at all. In short, the issues pertaining to Al-Ghizzawi are simple enough, and well within this Court’s ability to resolve on the present record, without further delay.

II. Al-Ghizzawi’s Condition Demands Immediate Relief.

As outlined in Al-Ghizzawi’s motion for injunction to this Court, the District Court denied Al-Ghizzawi’s Motion for his medical treatment and medical records because the military told that Court, through the conclusory, unsupported, self-serving and disputed contents of an affidavit by the military personnel, that Al-Ghizzawi is just fine and (reminiscent of the Government’s use of Orwellian euphemisms of “asymmetrical warfare” or “intentional self-injurious behavior” to describe suicide attempts at Guantanamo), it is actually Al-Ghizzawi’s own fault that in some cases he can’t physically cooperate with some of the limited medical attention he is offered and that he is somehow playing with us all and does not want to be treated for his life threatening diseases. This outrage of finger pointing at the victim of the Governments abuse must end, and end now.

The District Court, without even asking to review the actual medical records decided to believe the Government and ignored the affidavits from Al-Ghizzawi, his counsel, and liver specialist Dr. Juerg Reichen, all of which contradicted the military doctors pat position of rosy health save for Al-Ghizzawi’s own recalcitrance. Despite the Government’s assertion that Al-Ghizzawi’s medical condition is “uncontroverted” the District Court ignored the actual controversy before it and just uncritically accepted as true the affidavit from military officials, to paraphrase this Court’s decision in Parhat, solely because the Government said it thrice. It is time to let the Government prove its position with the medical records, instead of continuing to taunt both Al-Ghizzawi and the Courts with its games of purported “we know better” and “trust us,” all the while accusing Al‑Ghizzawi of playing games.

Without the actual medical records before a court or available to Al‑Ghizzawi, it becomes the classic “catch 22.” How can Al-Ghizzawi possibly prove how dire his condition is without the records? How can Al‑Ghizzawi ever show he is in danger of immediate and irreparable harm if he is to be denied the records to which any prisoner in any other context would be entitled? Counsel who has personally witnessed Al-Ghizzawi’s deteriorating condition over the years and brought these observations to the Court is disregarded, apparently because she lacks a medical degree, though the Government will not, of course, permit her to bring a medical consultant to examine Al-Ghizzawi and will not, of course, tender the medical records. As noted in Al-Ghizzawi’s original motion even the International Committee for the Red Cross inadvertently raised concerns about Al-Ghizzawi’s health to counsel in late 2006 (Injunction Motion, footnote 2). Ironically, at the same time that the District Court found no reason to believe Al-Ghizzawi and his counsel regarding his medical condition the Department of Defense’s own Inspector General has opened an inquiry into the medical clinic at Guantanamo because of repeated claims of medical neglect and malfeasance. In short, the District Court’s uncritical acceptance of the Governments unsupported allegations warrants the granting of Al-Ghizzawi’s present motion by this Court.

A. The military’s “enemy combatant” determination is invalid.

Although the Government repeatedly refers in it’s response to Al-Ghizzawi’s designation as an enemy combatant his second CSRT (the one that found him to be an enemy combatant after the Pentagon intervened to call in a “do-over”) relied on a theory that he supposedly was affiliated with a group (the “Libyan Independence Fighting Group” or “LIFG”) that the Government claims (without support) was associated with al Qaeda or the Taliban and allegedly engaged in hostilities against the U.S. or its allies. However, nothing in the record of Al-Ghizzawi's CSRT or anything else, either classified or unclassified(^[2]), contained any evidence whatsoever that Al-Ghizzawi was a member of the LIFG or even that the LIFG was affiliated in any way with Al Qaeda, the Taliban, the September 11th plot, or any other act against the United States or its citizens.

In addition, publicly available documents demonstrate that on October 5, 2001, just prior to Al-Ghizzawi’s kidnapping in return for the bounty the U.S. offered in Afghanistan, the State Department's List of Foreign Terrorist Organizations released a list that did not include the LIFG. However, by December 8, 2004, some two and a half years after Al-Ghizzawi arrived in Guantanamo and just weeks after he was found not to be an enemy combatant, the State Department just happened to issue a new list of foreign terrorist organizations, and it just so happened that the State Department then designated the LIFG as a "foreign terrorist organization" within the meaning of section 219 of the Immigration and Nationality Act. On December 8^th 2004 Al-Ghizzawi had been a prisoner for almost three years for ostensibly being a member of the LIFG while during that same period members of the LIFG could freely travel in the United States.

In the case of Parhat v. Gates, No. 06-1397, 2008 WL 2576977 (D.C. Cir. June 20, 2008), this Court held that the military’s Combatant Status Review Tribunal (“CSRT”) had invalidly declared that Parhat was an enemy combatant based on a similar alleged affiliation. Id. at *1. This Court directed the Government to release or to transfer Parhat, or expeditiously to hold a new CSRT consistent with the court’s opinion. Id. at *3. Al-Ghizzawi’s situation is indistinguishable. For the same reason as in Parhat, the Government has no lawful basis to detain Al-Ghizzawi in this action, as he was determined (the second time around after his first CSRT found no evidence of his being an enemy combatant) to be an enemy combatant under the very same discredited rationale that this Court found improper and voided as applied to Parhat. As Al-Ghizzawi has already been subjected to two CSRT’s it would be unconscionable and pointless to subject him to yet a third.

III. RESPONDENTS MUST BE RESTRAINED AND ENJOINED FROM KILLING OR PERMANENTLY INCAPACITATING AL-GHIZZAWI.

A. Habeas Jurisdiction And The Geneva Conventions Give Ample Basis To Grant The Relief Requested

The Federal Courts have broad power under 28 USC § 1651 to fashion equitable relief as may be necessary in aid of its equity jurisdiction in habeas cases. See SEC v. Vision Commc’ns, Inc., 74 F.3d 287, 291 (D.C. Cir. 1996) (noting that the All Writs Act “empowers court to issue injunctions to protect its jurisdiction”); see also Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (noting that centuries of tradition confirm that federal judges have “broad discretion in conditioning a judgment granting habeas relief”); see 28 U.S.C. § 2243 (directing courts to “dispose of [a habeas case] as law and justice require”); Carafas v. LaVallee, 391 U.S. 234, 239 (1968) (“mandate [of § 2243] is broad with respect to the relief that may be granted”); Jones v. Cunningham, 371 U.S. 236, 243 (1963) (habeas “never has been a static, narrow, formalistic remedy”).

The Federal Courts also have broad and specific authority to order appropriate relief under habeas corpus, including relief in the nature of bail or parole, addressed to the condition or maintenance of the prisoner prior to final resolution of the habeas petition. Baker v. Sard, 420 F.2d 1342, 1343 (D.C. Cir. 1969); Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001) (citing to Baker, 420 F.2d at 1343); Ostrer v. United States, 584 F.2d 594, 596 n.1 (2d Cir. 1978); Boyer v. City of Orlando, 402 F.2d 966, 968 (5th Cir. 1968) (ordering the release of a habeas petitioner on bail pending exhaustion of state and federal remedies). In addition, the writ of habeas corpus has long dealt with movement of prisoners. See, e.g., United States v. Mauro, 436 U.S. 340, 357 (1978) (power to issue writs of habeas corpus includes authority to issue such a writ when it is necessary to bring a prisoner into court to testify or for trial or to remove a prisoner in order to prosecute him in the proper jurisdiction where offense was committed).

In light of Al-Ghizzawi’s circumstances and this Court’s June 20 ruling in Parhat, the near-certainty of terrible harm to Al-Ghizzawi’s psychological well-being (if not the total and final deterioration of his health and the end of his life), and the astonishing length of his imprisonment without charge, Al-Ghizzawi has an urgent need, which cannot be remedied at law, to be protected from further medical neglect and from further exposure to the harsh regime of Camp 6.

The Geneva Conventions and the Supreme Court’s decision in Boumediene demand that Al-Ghizzawi be treated humanely and be afforded proper medical care until such time as his release. On information and belief, accommodations for Al-Ghizzawi are immediately available in Camp 4. Camp 4 at least permits prisoners to live communally in a bunk-house arrangement, and represents the least restrictive imprisonment regimen currently available at JTF-GTMO. Human company will allow Al-Ghizzawi to at least begin mental healing. Additionally Al-Ghizzawi must be afforded medical care at a civilian facility (as provided in the Geneva Conventions for situations such as here, where the military cannot or will not treat him) and his counsel must be provided his complete medical file so a proper determination and course of action can be planned.

B. There Is An Equitable Basis for Injunctive Relief Here

Al-Ghizzawi has more than shown the necessary factors for awarding injunctive relief. (1) Al-Ghizzawi will suffer irreparable harm if the injunction is denied; (2) no harm will be suffered by Respondents if the injunction is granted; (3) based on the record of Al-Ghizzawi’s two CSRT’s and in light of the decision in Parhat, Al-Ghizzawi is likely to succeed on the merits of his claim, and (4) there is a clear public interest in preventing the Government from refusing to competently treat its prisoner, in refusing to provide him medical records, and in holding a prisoner like Al-Ghizzawi in the astonishingly harsh, and potentially deadly isolation of Camp 6 particularly where the Government has no lawful basis to continue to detain him at all. See Al-Fayed v. CIA, 254 F.3d 300, 304 (D.C. Cir. 2001); Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1317-18 (D.C. Cir. 1998); Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C. Cir. 1998).

IV. CONCLUSION

Petitioner-appellant Al-Ghizzawi has been held for more than 6 ½ years at Guantanamo despite the fact that he was initially found to NOT be an enemy combatant in his “first” CSRT and is only still held because the military violated its own rules and conducted a "do-over" CSRT to avoid the embarrassment of explaining why it was, and still is, holding an innocent man for years, now more than six and a half years, despite his complete innocence. Al-Ghizzawi has been held in complete isolation for 20 months and in conditions that are saved for convicted felons of the worst order. These conditions have never been intended, let alone permitted, for innocent men held for years without charge. As the Government continues its stonewalling and Orwellian gamesmanship Al-Ghizzawi’s physical and mental health are being steadily and inexorably destroyed by the Government as a result of his isolation and untreated health problems. Rather than the Government admit that it has wrongfully held this innocent man, even after the Government's own CSRT process so found it, it has instead apparently decided to just keep him in isolation indefinitely, possibly until death. Because Al-Ghizzawi's case is sui generis Al-Ghizzawi begs this Court to end this extra-legal nightmare that is contrary to every value that this country purports to hold dear before it is too late for him and to reject the Government’s self-serving proposals for further delay. The issue now before this Court is well-defined. The Government has made its position crystal clear in its opposition papers. Although counsel will certainly provide additional briefing if the Court so requires, Al-Ghizzawi respectfully submits that the Government has been more than able to articulate the reasons for its position, and that this Court can make its decision on the record and submissions now before it, without yet further delay. Due to the ongoing and worsening physical and mental deterioration of Al-Ghizzawi it has become difficult for Al-Ghizzawi to continue to help his attorney in any meaningful way or to concentrate on his legal efforts and assist in his own case, lest the irony of the man whose own personal injustice led the Supreme Court to confirm this nation's commitment to habeas corpus dying of medical neglect at the hands of his unlawful captors become a sad reality. Without question, justice delayed any longer will truly be justice denied.

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^[1] Al-Ghizzawi also has a DTA/Habeas Petition pending in this Court: Case No. 07- 1089.

^[2] Those records are before this Court in Al-Ghizzawi’s appeal 06-5394 and his DTA/habeas petition.