Monday, October 27, 2008

boycott at trial

2nd prisoner and lawyer boycott Guantanamo trial
October 27, 2008 2:02 PM EDT
GUANTANAMO BAY NAVAL BASE, Cuba - A military judge struggled to begin Guantanamo's second war crimes trial on Monday after a former aide to Osama bin Laden refused to participate, and his Pentagon-appointed lawyer said he would remain silent in solidarity.

Ali Hamza al-Bahlul, facing a possible life sentence, sat mutely at the defense table. His lawyer announced the prisoner was boycotting the trial because he did not want a military attorney and because the judge had denied his repeated requests to represent himself.

The appointed defense attorney, Air Force Maj. David Frakt, asked to be relieved in deference to his client's wishes, but the judge refused. Frakt then said he could not participate either.

"I will be joining Mr. Al-Bahlul's boycott, sitting silently at the table," said Frakt, who then refused to respond to several questions from the judge.

The judge, Air Force Col. Ronald Gregory, said Frakt was obligated to participate and that both the lawyer and defendant, despite their wishes, would be required to attend the hearings - even if they stay silent.

"The commission will not proceed with an empty defense table," Gregory said.

He was scheduled to begin picking a jury of U.S. military officers later Monday.

Al-Bahlul, who is charged with conspiracy, supporting terrorism and solicitation to commit murder, is the second test of the military commission system. The first trial - for former bin Laden driver Salim Hamdan - ended in August with a conviction and a 5 1/2-year sentence. A third detainee, Australian David Hicks, was convicted in a plea bargain before a trial.

Al-Bahlul said at a previous pretrial hearing that he wanted nothing to do with his trial and would attend only for the announcement of the verdict and sentence. He called the proceedings at this isolated U.S. Navy base a "legal farce."

The 39-year-old from Yemen allegedly created a recruiting video for al-Qaida glorifying its attack on the destroyer USS Cole in Yemen that killed 17 American sailors in October 2000. He is also accused of arranging for lead Sept. 11 hijacker Mohamed Atta to swear a loyalty oath to bin Laden.

Al-Bahlul, who has been held at Guantanamo since 2002, has acknowledged working for bin Laden but said he does not agree his actions constitute crimes.

The U.S. military says it plans trials for 80 of the roughly 255 men held at Guantanamo on suspicion of terrorism or links to al-Qaida or the Taliban. Eighteen prisoners are currently facing charges.

Thursday, October 16, 2008

From New York Times

Release of 17 Guantánamo Detainees Sputters as Officials Debate the Risk


Published: October 15, 2008

An urgent effort by the Bush administration to find a country willing to accept 17 detainees held at Guantánamo Bay, Cuba, has stalled because of a bitter dispute inside the government about whether the men are dangerous.

The administration stepped up its search for a new home for the detainees, members of the Uighur Muslim minority in western China, after a federal judge ordered them to be released inside the United States a week ago.

But because of the dispute within the administration, an American ambassador canceled a trip for international negotiations about the fate of the 17 men that had been scheduled to begin Monday.

People briefed on the issue said that the State Department, which is charged with trying to resettle Guantánamo detainees by coaxing other countries to accept them, argued that the Justice Department compromised diplomatic efforts with a court filing Friday that asserted that the Uighurs should not be released inside the United States. The filing described them as “a danger to the public” and as men who had been trained in insurrection.

“Based on what they were saying in the brief, it made it impossible to conduct negotiations,” said an administration official who spoke on the condition of anonymity because he had not been authorized to discuss the dispute.

The State Department has often been at odds with the Justice Department and the Pentagon over detainee issues, at times arguing that those agencies do not take sufficient account of Guantánamo’s impact on international relations.

The Uighur detainees have been at the center of a contentious legal confrontation that drew wide attention with a ruling from Judge Ricardo M. Urbina, on Oct. 7, directing that they be freed in Washington, D.C. The ruling that the men were not a danger to the United States was a defeat for the White House and was the first to order the freeing of Guantánamo detainees.

After an emergency filing by the Justice Department the next day, an appeals court temporarily stayed the ruling while it considered whether to grant a longer stay.

Clint Williamson, the State Department’s ambassador-at-large for war crimes issues who conducts Guantánamo resettlement talks with other countries, confirmed that he had changed his plans.

“I was scheduled to depart on another round of negotiations early this week,” Mr. Williamson said. “It was impossible to resolve some concerns we had about going forward at the time. As a result I canceled the trip.” He declined to say where he had planned to travel.

A Justice Department spokesman, Dean Boyd, declined to discuss the dispute, saying, “We don’t comment on internal deliberations.”

The temporary stay of Judge Urbina’s ruling had given provided time for renewed diplomatic efforts to resettle the men and to avoid a potential conflict between the judge and the administration.

The appeals court could rule as soon as Friday about whether it will extend the stay on Judge Urbina’s ruling or return the case to him. The State Department had been under great pressure inside the administration to find a country willing to accept the Uighurs.

Lawyers for the Uighurs, who were in Afghanistan in 2001, said the men would be persecuted if they were returned to China. The administration agreed that it would not send them there. But it said that since transferring 5 Uighur detainees to Albania in 2006, it had been unable to persuade governments to accept the other 17.

Diplomats say that many governments fear reprisal by China, which considers Uighur separatist groups terrorists.

Lawyers for the men have said that the Justice Department exaggerated its claims against the men in its legal arguments.

The people who have been briefed on the dispute said that the State Department also regarded the language describing the men as inflammatory and impossible to prove.

They said the department viewed efforts to find a country willing to accept the detainees as futile as long as the Justice Department argued that the men were too dangerous to be admitted into the United States.

The Uighur case has become a focus of many critics of the Guantánamo detention center. Jennifer Daskal, a counterterrorism specialist at Human Rights Watch, said that some administration officials appeared determined to block their release.

“The true fear,” Ms. Daskal said, “is not that they will pose a security threat, but that they will serve as living reminders of the administration’s mistakes in setting up Guantánamo.”

Wednesday, October 15, 2008


Roger Fitch Esq • October 8, 2008

Our Man in Washington

Not only is the economy unravelling at a rapid rate, but so too the well laid extraordinary legal regime of the Bush administration. All that remains are a few well worn Republican dirty tricks to rort the ballot

imageIn a manoeuvre emblematic of George Bush’s lawless approach to law enforcement, military commission charges have been referred against a Tanzanian, Ahmed Ghailani, for civil offences.

As the Miami Herald noted, there’s a valid indictment against Ghailani in US District Court in New York for his alleged role in the 1998 bombing of the US Embassy in Tanzania (see my post of June 2), but the Bush administration prefers a military commission.

No doubt, it’s because the Pentagon intends to use evidence tortured from Ghailani or others.

Commissions, with their triple hearsay, suspension of due process, and jurors from a panel picked by the Convening Authority – Dick Cheney’s mate Susan Crawford – have much to commend them.

The alternative? The Federal Rules of Evidence and the US Constitution.

Diverting civil crimes to special military courts of doubtful legality and jurisdiction was also a favourite tactic of Adolf Hitler. Unlike Herr Hitler, Mr Bush enjoys an independent media that never questions the Leader’s good faith or credits him with ill motives.

However, there has been one important breakthrough. Federal Judge Ricardo Urbina has just released 17 Chinese Muslim detainees, or Uighurs, who have been held at Guantánamo in a state of limbo for seven years.

Not only that, the judge has ordered their release into the USA.

Needless to say, the administration is seeking a stay pending an appeal.

* * *

Even with military commissions, there could be problems for the US.

For instance, the professional association of the American psychologists has just sent a letter to the White House explaining why its members can no longer assist with detentions and interrogations.

It seems as though procuring raw material for Bush show trials could be more difficult in future.

A new legal opinion concluded that UK soldiers might face prosecution for handing over Iraqi prisoners to the Americans, where the detainees face mistreatment.

The Guardian has more.

imageThe Canadians are also getting restless.

The Canadian Bar Association is seeking the release of the military commission defendant Omar Khadr, and Canada’s Governor General, Michaëlle Jean (pic), is said to have also intervened.

There’s a new piece on Khadr in the Canadian online magazine Briarpatch.

All the while, extrajudicial trials for unknown war crimes continue to be set in motion at Guantánamo.

Former Chief Prosecutor Col. Morris Davis puts them in perspective in a new law review article on the history of military commissions.

Significantly, another Pentagon prosecutor has quit. He’s Lt. Col. Darrel Vandeveld, lead prosecutor in the military commission of Mohammad Jawad.

Jawad, like Khadr, was captured when a juvenile and charged with throwing a grenade at US soldiers.

As in Khadr’s case, there’s conflicting evidence that the grenade was thrown by the defendant, with the Pentagon busily blocking defence counsel’s access to possibly exculpatory evidence.

When Col. Vandeveld made known his qualms about failing to provide such evidence to the defence, he was accused by the Chief Prosecutor of, well, fraternising with the enemy, namely Jawad’s military counsel Major David Frakt.

Col. Vandeveld reports that he was compelled to have a psychiatric assessment after his ethics outburst.

There are worse things, however, than a lawyer being sent to a shrink. Joanne Mariner worries about mentally incompetent detainees being tried, while the government conceals evidence of their mental state.

imageAnd how would one prove incompetence?

According to government pleadings in the Washington DC habeas cases, defence counsel are not entitled to see medical records of detainees.

Sadly, Chief Judge Thomas Hogan (pic) agreed.

In another DC dirty trick, the government wants to file amended habeas returns to bolster evidence it had called watertight – when it was unreviewable.

* * *

Meanwhile in Miami, a US Attorney is trying the first case ever brought under the Torture Convention Implementation Act, a 1994 law that makes it a crime for US citizens to commit torture overseas.

The defendant is Charles (“Chuckie”) Taylor Jr, son of the Liberian dictator who is facing trial in the Hague.

Time Magazine has more.

Quite sensibly, defence lawyers asked the court to use the more liberal Bush Gang definition of torture.

The activation of the Torture Act by the Bush administration would seem to be an act of pure chutzpah and dangerous hypocrisy.

Think about the precedent! Joanne Mariner has more at FindLaw’s Writ_.

* * *

The Wall Street bailout has been passed by Congress and signed by our putative president.

Apparently, members of Congress who received the most money from Wall Street were the most likely to support the bailout, and McClatchy News noted that the sum contributed by the eight most troubled companies was $64 million.

Money talks – at least it buys access. That’s what the big investment banks got on April 28, 2004 when they won SEC exemptions from the net capital rule – with dire consequences.

* * *

imageWhile the talk in Washington is all about the financial crash and the Bush Regime having brought it on, the journalism watchdog at Harvard wonders why so few media have commented on those other crashes, i.e. John McCain’s frequent involuntary conversions of US military hardware when he was a Navy pilot.

The LA Times has obliged with a report on McCain’s mishaps.

Writing off states, if not planes, has been reported: the McCain (seen here) election campaign has abandoned Michigan.

That seems a waste, as Michigan Republicans had discovered an ingenious new way to stop potential Democrats from voting – lists of foreclosed homes. The New York Times has more.

It’s all a part of “caging voters, according to a former head of the Justice Department’s moribund Voting Section.

NYU Law School’s Brennan Center has a new study on the practice of purging voter rolls for political purposes.

Naturally, voter registration organisations are targeted when it is thought they might be registering Democrats.

Federal law requires the Social Security Administration to verify new voter registrations. Accordingly, the Bush administration has helpfully arranged for the Social Security computers to go offline for three days in October during the peak voter registration period.

Meanwhile, the House of Reps is considering a Bill that would stop the disenfranchisement of students, an old favourite of the Republicans.

At the finish line, three states will be using partisan Republican-connected contractors to count the votes, an idea that must astound Australians.

* * *

The American Civil Liberties Union has just released a report on the special difficulties ex-convicts face in getting the right to vote.

The Republicans reckon most prisoners are Democrats, so they actively discourage restoration of voting rights to ex-convicts.

Maybe the Bush administration should back the ACLU on this. In future, many of the felons completing their debt to society could be Republicans.

Saturday, October 4, 2008

No Movement

Despite Ruling, Detainee Cases Facing Delays

Published: October 4, 2008
When the Supreme Court ruled in June that detainees at Guantánamo had the right to challenge their detention in federal court, the justices said that after more than six years of legal wrangling the prisoners should have their cases heard quickly because “the costs of delay can no longer be borne by those who are held in custody.”

But nearly four months later, as the Bush administration has opened a new defense of its detention policies in federal court, none of the scores of cases brought by detainees has been resolved by any judge.

Since the Supreme Court issued its ruling, lawyers for most of the 255 detainees in Guantánamo Bay, Cuba, have pressed ahead with habeas corpus lawsuits, yet most of those cases have been delayed by battles over issues like whether some court sessions will be held in secret, whether detainees can attend and what level of proof will justify detention.

Some of the arguments made by the Justice Department appear to challenge the Supreme Court’s conclusion that the federal courts have a role in deciding the fate of the detainees. One Bush administration argument asserts that only military officials — not federal judges — have the power to decide how to conclude wartime detentions.

Officials and lawyers inside and outside of the government say the new legal confrontation suggests that the Bush administration will most likely continue its defense of the detention camp until the end of President Bush’s term and is not likely to close the camp, as administration officials have said they would like to do.

“The legal issues that are being raised by the administration are going to take longer than the remaining time of the administration” to resolve, said Vijay Padmanabhan, an assistant professor at Cardozo Law School who was until July a State Department lawyer with responsibility for detainee issues.

“It is part of a broader strategy,” Mr. Padmanabhan added, “which is not to make difficult decisions about Guantánamo and leave it to the next president.”

Detainees’ advocates say that the administration is using the legal battle to delay judicial review of its evidence, while government lawyers argue that the cases are moving rapidly considering that they are unprecedented.

A Justice Department spokesman, Erik Ablin, said the government was working toward quick hearings for detainees, but was determined to take every precaution to avoid having dangerous people released. He added that “it is certainly the government’s goal to detain enemy combatants who are deemed a threat to the United States.”

Habeas corpus suits, which have their root in centuries-old English law, are generally streamlined proceedings for prisoners to force officials to explain why they are being held. The Guantánamo cases permitted by the Supreme Court’s ruling, Boumediene v. Bush, are to review the government’s reasons for holding the men as enemy combatants.

The military’s enemy combatant hearings, which the administration says permit indefinite detention, are separate from the Pentagon’s effort to prosecute some detainees in military commission trials.

A first test of a judge’s power in a federal habeas case may come on Tuesday during arguments in a case involving 17 detainees who claim a right to immediate release. The path to court has been slow for the habeas cases, and most seem unlikely to reach resolution until well into the next president’s administration, lawyers say. In some cases, government lawyers are adding new grounds for holding the men, supplementing or replacing the accusations made during Guantánamo hearings four years ago.

Lawyers say some of the government’s arguments could create grounds for years of new appeals by the Justice Department.

Many of the hurdles to moving the cases to court have been practical ones, including an initial shortage of Justice Department lawyers and the need to develop procedures for intelligence agencies to review classified evidence.

In August, Justice Department lawyers told the United States District Court in Washington that they could not meet their own deadline for providing initial responses to the cases. “The task has proven even more difficult than originally envisioned,” said a Justice Department filing.

The new schedule called for initial responses to 50 cases a month beginning in September. As a result, challenges by some detainees would not begin to move in the courts until January, the Bush administration’s last month in office.

Mr. Ablin, the Justice Department spokesman, said accusations against detainees might need to be updated because of the “changed legal landscape” and because intelligence collection might have changed what is known about detainees.

“It would be irresponsible,” he said, “not to update the courts with additional information gained over the past several years” that proved links to terrorism.

The government is relying extensively on classified information. That is quite likely to raise defense questions about how detainees can defend themselves since they are not permitted to see much of the evidence against them — long a contentious issue in the military’s hearings at Guantánamo Bay.

“Time is on their side,” Matthew J. MacLean, a Washington lawyer for four Kuwaiti detainees, said of the government. “Every day of delay is one more day our clients are in prison without a hearing.”

The habeas case scheduled for a federal court hearing on Tuesday involves 17 Guantánamo detainees who are ethnic Uighurs, a restive Muslim minority in western China.

In a separate case that was under way before the Supreme Court ruling in June, federal appeals judges issued a decision this summer that ridiculed as inadequate the Pentagon’s secret evidence for holding one of the Uighurs, Huzaifa Parhat, a former fruit peddler who said he had gone to Afghanistan to escape China.

Since then, the Pentagon has conceded that it would “serve no useful purpose” to continue to try to prove that any of the 17 Uighurs were ever enemy combatants.

The Uighurs say they have never been enemies of the United States, though they were in Afghanistan in 2002, where they were detained. They say they would be persecuted or killed if they were returned to China. The Bush administration says it has failed to find another country willing to accept them.

On Tuesday, a federal district judge, Ricardo M. Urbina, is to hear an urgent claim by lawyers for the Uighurs, that they should be released immediately into the United States since they are no longer considered enemy combatants.

The government argues that they should be held at Guantánamo until another country can be found to accept them. In filings, the Justice Department lawyers make expansive arguments that, while Judge Urbina can hear the Uighurs’ case, he cannot order their release. The judiciary “simply has no authority” to release the Uighurs into the United States, one filing said.

The Justice Department said the government’s executive branch, not the judicial branch, has the authority to conclude military detentions, as it has in prior wars. It noted that in World War II “no court ever questioned that it was solely for the political branches — not the courts” to decide how Italian prisoners of war were handled.

P. Sabin Willett, one of the Uighurs’ lawyers, said such claims appeared to be laying the groundwork for government appeals in the event that a judge orders a detainee freed.

The first full court hearing examining the evidence in a habeas case — this one involving six detainees at the center of the Supreme Court’s June decision — is scheduled for Oct. 27. Still, hearings for the vast majority of the detainees are unscheduled.

The Supreme Court justices said in their June decision that the detainees were “entitled to a prompt” hearing, but did not specify how prompt.

Mr. Willett said that while “prompt” might be open to interpretation, “I think they meant more quickly than this.”

Wednesday, October 1, 2008

Roger Fitch

Roger Fitch Esq • September 26, 2008

Our Man in Washington

Death throes of the Bush regime … Key case to test concept of “enemy combatants” ... Last minute election tricks in the Republican armoury … Cheney ordered not to destroy his papers … The 20 most corrupt members of Congress.

imageEven in its dying days the Bush administration seeks to vindicate a frightening principle and make it a permanent feature of American law.

It’s the notion that a US president, on his own say-so, can seize and indefinitely detain anyone, anywhere in the world, including US citizens and those on US soil, for any reason he chooses – without “second-guessing”, as the Bush lawyers call judicial review.

All the president has to do is designate individuals as belonging to an invented category he fabricated for the express purpose of defeating their legal rights.

With a wave of Mr Bush’s wand, mortal beings become “enemy combatants” who by some (black) magic are denied all constitutional and human rights. Bush lawyers have told courts that the government can do anything it likes with such people, even kill them (see my post of September 28, 2006).

imageThe key case testing this bizarre doctrine is that of Ali Saleh Al-Marri (pic), a US legal resident from Qatar, seized in Illinois and held since 2003 in a navy brig in South Carolina.

He is the only person known to be in such extralegal detention on US soil. The rest are held in Guantánamo or overseas.

Al-Marri’s lawyers have just filed a petition for certiorari in the Supreme Court.

Scotus Blog has more.

Although Al-Marri initially won in the Court of Appeals, an en banc panel unexpectedly ruled for the government.

Marty Lederman has written about the 4th Circuit opinion in a post on the Balkin blog.

* * *

In the meantime, the campaign to elect a new US president (or dictator, depending on your point of view) is in full swing.

Is John McCain qualified to serve?

A lawsuit contends he isn’t, as he was born outside the US.

imageAlthough some polls show McCain (seen here) is leading Obama, the Republicans can be expected to leave nothing to chance, and are rumoured to be planning an “October surprise”, perhaps some new war development.

The Pentagon, for its part, has tried unsuccessfully to stage Omar Khadr’s military commission during the presidential campaign.

Despite the sacking of the independent-minded Judge Peter Brownback in the Khadr case, the new judge, Patrick Parrish, has deferred the trial until November 10, after the election.

If all else fails, there are voting machines. As the election approaches, the Princeton University IT department has shown elections can be easily stolen by Diebold machines that are maliciously programmed.

A video shows how it’s done.

The Congress – all of the house and one-third of the senate – is also facing an election on your Melbourne Cup Day.

Some, like Republican Senator Ted Stevens of Alaska, are running while under federal corruption indictment.

The organization Citizens for Responsibility and Ethics in Washington has announced this year’s list of the 20 most corrupt members of Congress, with a fair sprinkling of Democrats.

Senator Stevens is only number 19.

* * *

As the most powerful and (some say) devious vice president in US history prepares to leave office, a lawsuit has been filed to stop Mr Cheney from burning his papers.

The court sided with CREW, which brought the case.

imageIn a timely addition to our knowledge of Cheney (seen here), a new book by Barton Gellman has appeared with revelations about the vice president, his legal counsel David Addington, and the National Security Agency’s illegal spying that has been sponsored by the two men.

The Washington Post has a two-part report here and here.

Speaking of spying, former attorney general Alberto Gonzales has been censured by the Department of Justice Inspector General.

In the warped world of Washington, Freddo was chided, not for felonious eavesdropping, but rather for carelessly handling the classified materials concerning such illegal programs.

The Washington Post has more.

* * *

On the Guantánamo front, the recent revelation that a professional psychologist “took the 5th” at a military commission (see my post of August 28) has shaken the American Psychological Association into action.

The APA has finally decided to join the medicos and psychiatrists in banning its members from participating in interrogations where “persons are held outside of, or in violation of, either international law … or the US Constitution”.

That should cover most military and CIA interrogations by the Bush administration.

Meanwhile, the “legal adviser” for military commissions, Brig Gen Thomas Hartmann, has been shifted to a new job after being barred from three successive military commissions by their presiding judges.

In Washington, hearings of Guantánamo detainees are gearing up to be heard, this time in district court habeas hearings rather than DC Court of Appeals Detainee Treatment Act reviews.

The Justice Department wants the courts to order a procedure that gives DoJ the best of both worlds.

imageDefence lawyers weren’t taking it lying down, and demanded punitive measures for the government’s obstructive delays in district court.

In the end, the government got its way when the presiding judge, Thomas Hogan (pic), declined to sanction the Bush administration.

It seems the deference of federal courts in the face of shameless government manipulations will continue till the last day of the Bush administration.

That has observers wondering what an Obama judiciary might look like.

* * *

Eminent experts are now coming forward with advice on how the next president can undo the errors of the man most people believe to be the worst president the US ever had.

Mother Jones devoted a whole issue to the problem.

MJ also brought an historical perspective to the Bush practices.

While the Pentagon spruiks “war crimes” trials for “high value detainees” at Guantánamo, a conference just held at a Massachusetts law school had as its subject the “high level American war criminals” in the Bush administration.

imageAnd in Washington, even as Senate Republicans attempt to interfere in the Boumediene aftermath, Democrat Senator Russ Feingold (pic) has been holding Judiciary Committee hearings on “Restoring the Rule of Law”.

Perhaps the admonition of General George Washington, in his charge to the Northern Expeditionary Force in 1775, provides an answer to what is needed:

“Should any American soldier be so base and infamous as to injure any [prisoner] ... I do most earnestly enjoin you to bring him to such severe and exemplary punishment as the enormity of the crime may require. Should it extend to death itself, it will not be disproportional to its guilt at such a time and in such a cause … for by such conduct they bring shame, disgrace and ruin to themselves and their country.”

And why not the Commander-in-Chief?