Roger Fitch

Roger Fitch Esq • July 26, 2008

Our Man in Washington

A non-war crimes “war crimes” case gets underway before legally dubious military commission … Plenty of Kafkaesque moments for 9/11 accused … US extracts “intelligence” with Chinese style “enhanced techniques” from Korean war era

“The History of the present King … is a History of repeated Injuries and Usurpations, all having in direct Object the Establishment of an absolute Tyranny …

“He has affected to render the Military independent of and superior to the Civil Power … giving his assent to Acts of pretended Legislation … transporting us beyond Seas to be tried for pretended Offences.

– Declaration of Independence (1776)

On July 21, Serbia announced the arrest of Radovan Karadzic, a real war criminal who had been on the run for 12 years.

That very morning, a mock trial for pretended offences against the law of war began at Guantánamo Bay.

But these military commissions, referred to in the media as “war crimes” trials, are nothing of the kind.

Later the same day, the attorney general announced a new administration feint, long expected after the Boumediene decision: he proposed legislation that would once again move the goalposts for detainees seeking their day in court.

With six months to go, the Bush lawyers are intensifying legal offensives on every front – what they call “lawfare” when others do it – beginning with a full court press at the commissions.

In Guantánamo, the Bush Regime has begun the actual war crime of staging a non-war crimes “war crimes” trial, with the first victim being Salim Hamdan, the bin Laden motor-pool driver accused of carrying two stinger missiles in the back of his car.

How this came to be a “war crime” remains sketchy as military transport drivers have never previously been identified as war criminals, even when they drove Herr Hitler or served the Wehrmacht.

In this parody of a real war crimes trial, the alleged offences are “conspiracy” and “material support for terrorism”.

Both charges are unknown to the law of war, a fact unchanged by Congressional recitals to the contrary in the Military Commissions Act.

In Hamdan’s very own case, “conspiracy” was specifically rejected by the US Supreme Court. But what would they know?

In Washington, Hamdan sought a court stay of his military commission, as he did successfully in 2004.

Once again, hundreds of European parliamentarians strongly supported his petition with an amicus brief.

The government claims that, by virtue of the MCA, federal courts remain stripped of habeas jurisdiction for anything other than the consideration of detention, and can’t stop other acts of the government such as substandard military commissions or sending detainees to third countries where they face torture or worse.

In the end, Hamdan’s efforts failed.

In an opinion issued on the Friday (July 18) before Hamdan’s trial in Gitmo began, Judge James Robertson (pic) declined to stay the commission. Scotusblog has more.

In the meantime, Judge Peter Allred rejected Hamdan’s commission motion to have the two charges suppressed as ex post facto offences.

As the US lacks a special court (like Germany’s) to fast-track constitutional questions, the plan to try Hamdan by a legally doubtful commission will probably succeed.

Conviction and appeals will follow.

The next worry for commission defendants may be that less inept lawyers in a new administration, e.g. Mr Obama’s, will prove more dangerous, with more rational arguments on appeal.

* * *

The military commission for the alleged “9/11” plotters is still proceeding through pretrial motions but the Bush administration is now claiming that the American Civil Liberties Union has to get a licence from Treasury’s Office of Foreign Assets Control before it can pay the 9/11 lawyers.

When you consider that the Guantánamo Five enjoy a presumption of innocence in the military commissions, it seems somewhat incongruous that the OFAC regs assume the defendants to be guilty terrorists.

The same argument carries on in the commissions as well. Government prosecutors told Judge Allred that members of the Guantánamo Five can’t appear as witnesses for Hamdan. No one on the commission – including the judge – has (or can get) a security clearance high enough to hear what they have to say.

The 9/11 judge, Ralph Kohlmann, can’t even get the cooperation of jailers. Two of the 9/11 defendants who seek to represent themselves complained that their handwritten motions to the judge did not reach him because the guards refused to take them.

Translations of documents, if provided at all, were handed to defendants as they entered the courtroom, handcuffed.

Judge Kohlmann said he would accept handwritten motions, but left it up to the defendants to figure out where to get paper and pen.

Translations aren’t required by the MCA, it seems, or access to a law library and classified papers.

In another Kafkaesque moment, one 9/11 defendant begged to see the secret evidence against him before he is executed.

Walid bin Attash says his lack of a suitable clearance to see secrets shouldn’t matter if he’s put down after seeing them.

* * *

This month we learned that tactics employed by the Bush administration to extract damning confessions from “enemies of the state” – sorry – to obtain valuable intelligence from “enemy combatants” – are identical to those listed in a 1956 report on Chinese Communist practices used in the Korean War.

These “enhanced techniques” resulted in spectacular if implausible confessions by US military personnel, and the Bush Gang thought they might work the other way round.

Here’s the Biderman Report’s list of torture techniques.

The latest topic of discussion has been The Dark Side, a new book by The New Yorker’s Jane Mayer (pic).

It tells of torture approval at the highest levels of the administration and reveals that the International Red Cross confronted the president over torture in the Bush Gulag.

Louis Bayard of Salon and The Atlantic blogger Andrew Sullivan have more.

Meanwhile, following similar Canadian decisions, a British parliamentary committee has decided that the assurances of the US government that it does not torture cannot be trusted. Blogger and law professor Jack Balkin has more.

Indeed, the possibility of war crimes charges against Mr Bush was discussed at a legal meeting in Vienna, but it was conceded that regime officials will probably escape justice.

The thoughts of The Washington Post on this matter were revealed when the law reporter Stuart Taylor (pic) of the Post-owned Newsweek announced that war crimes – at least American war crimes – were best left completely unpunished – for the Good of the Nation.

The Nation felt otherwise.