Monday, December 15, 2008
Case Name: SLITI et al v. BUSH et al
MINUTE ORDER denying  MOTION to Dismiss Improper Respondents. It is hereby ORDERED that the motion is DENIED. Signed by Judge Richard J. Leon on 12/15/2008.
The following transaction was entered on 12/15/2008 at 9:18 PM EDT and filed on 12/15/2008
Case Name: SLITI et al v. BUSH et al
MINUTE ORDER. It is hereby ORDERED that the government's request . . . for a general rebuttable presumption of accuracy, authenticity, and reliability for the government's information as to Hisham Sliti and Mohammed el Gharani is DENIED. Signed by Judge Richard J. Leon on 12/15/2008.
By Peter Finn
Washington Post Staff Writer
Monday, December 15, 2008; 6:46 PM
The Bush administration has decided to transfer three Algerian detainees to their adopted homeland of Bosnia and Herzegovina, a decision that partially complies with the order of a federal judge who said last month that five Algerians should be released "forthwith," rejecting government allegations that the men were dangerous enemy combatants.
But Lakhdar Boumediene, the Algerian whose name is associated with a landmark Supreme Court decision regarding the legal rights of those held at the Guantanamo Bay, Cuba, naval base, remains in limbo despite the U.S. District Court ruling and the imminent release of his countrymen.
Administration officials and other sources, who declined to be identified because of the sensitivity of the issue, said today that authorities at the base have begun to prepare for a transfer, a process that includes moving detainees to a pre-release facility at Guantanamo and their conducting exit interviews with the International Committee of the Red Cross. Three of the men have had exit interviews in recent days, sources said.
A Pentagon spokeswoman declined to comment, citing operational concerns.
The ICRC also declined to comment.
The State Department has been negotiating with the Bosnian government over the transfer of the five men, administration officials said, but authorities in Sarajevo have agreed so far only to accept those detainees who hold Bosnian citizenship -- Mohamed Nechle, Mustafa Ait Idir and Hadj Boudella. The governments continue to discuss the fate of two other Algerians, Saber Lahmar, a former legal resident of Bosnia, and Boumediene, who was stripped of his citizenship during a court proceeding in Sarajevo.
The men were seized by U.S. troops in Sarajevo in early 2002 despite the fact that a Bosnian court said there was insufficient evidence to sustain charges that they were planning to blow up the U.S. embassy there. In an action coordinated with the Bosnian government, the Algerians were detained by U.S. troops as they walked out of a detention center.
The men were flown to Guantanamo Bay, where they have been imprisoned since, even though the Chamber for Human Rights, the internationally-chaired top human rights body in Bosnia, called on the United States to leave four of the suspects in the country.
Boumediene subsequently sued President Bush for the right to challenge his detention in federal court, an action forbidden by the Military Commissions Act. In June, the Supreme Court ruled for Boudmediene, granting his request for habeas corpus in a 5 to 4 decision.
Hundreds of Arab fighters fought during the 1992-95 war in Bosnia, a former Yugoslav republic, and some stayed behind after the war and married Bosnian women. In the immediate aftermath of the Sept. 11, 2001, attacks, some American officials raised concerns that the country was a haven for Islamic extremists.
In October, the Justice Department withdrew without explanation the embassy bombing allegation, but it continued to charge that the men planned to travel to Afghanistan to attack U.S. forces.
U.S. District Judge Richard J. Leon said last month that the evidence against the men came from one unnamed source in a classified document, which he described as a "thin reed." Leon was the first judge to rule that the government had insufficient evidence to hold a Guantanamo detainee.
Leon ruled, however, that the continued detention of a sixth Algerian and former Bosnian citizen, Belkacem Bensayah, was proper. U.S.
officials said Bensayah had regular contact with senior military aides to Osama bin Laden and logged dozens of phone calls to Afghanistan after Sept. 11 and before his arrest by Bosnian authorities in 2001.
Judge Leon urged the government to "end this process" and not to appeal his decision to release the other five Algerians.
"Seven years of waiting for a legal system to give them an answer . . .
in my judgment is more than enough," Leon said.
Lawyers for the men welcomed the imminent release of the three detainees, but said the government should quickly secure a commitment from Bosnia that Boumediene and Lahmar can return to Sarajevo as well.
"We're encouraged, but the court said this should happen for all five men and I'm hoping that the United States is doing what the court instructed, which is taking all diplomatic and legal steps to get all of these men home," said Rob Kirsch, an attorney at the law firm of WilmerHale, which represented the six men in federal court.
The firm plans to appeal the continued detention of Bensayah.
Staff researcher Julie Tate contributed to this report
Sunday, December 14, 2008
Roger Fitch Esq • December 14, 2008
Our Man in Washington
Final gasp of the Bush regime … Legal uncertainties at Guantánamo after 9/11 conspirators plead guilty in death penalty case … Last minute regulations and orders wreak environmental vandalism – but delight the NRA … Washington goes on “pardon watch”
One of the torpid tribunals at Guantánamo sprang back to life on December 8.
The “9/11 Conspirators” were scheduled for a routine pre-trial hearing, but it turned out to be much more when the five defendants announced they were ready to sack their lawyers, drop pending motions, plead guilty and die martyrs.
For once, the government and the defendants agreed.
With little time left, the government desperately wants guilty pleas and death sentences, to provide a fait accompli for the incoming Obama administration.
However, the Military Commissions Act – unlike the Pentagon’s MCA Rules – requires a unanimous jury for the death penalty.
According to trial observer Jennifer Daskal, the judge, Col Stephen Henley, was unsure how to proceed and ordered briefings:
“Could he, or could he not, accept a guilty plea in a death penalty case? If he accepted the plea, would the sentencing jury still be allowed to impose death?
The briefs are due January 4, leaving the court just enough time to reconvene and take guilty pleas before Barack Obama takes office. If the court accepts the plea, and the plea is deemed valid, then double jeopardy kicks in… They have to be tried by this military commission or they cannot be tried by the US government for the specific charges relating to the 9/11 attacks.
If the pleas are made and accepted before January 20, President Obama could not simply announce an end to the commissions and transfer these cases to federal court.”
* * *
Even if President Obama doesn’t immediately suspend the military commissions and end the extralegal detentions at Guantánamo, Bagram and CIA black sites, it is hoped that January 20 will mark the end of the casual brutality – and sometimes, calculated cruelty – that defined the Bush administration.
That’s the hope of a group of US retired military officials who’ve had meetings with Obama aides.
It seems that Obama has a personal interest in ending “counter-terrorism” policies that rely on “enhanced interrogation”.
His Kenyan grandfather was tortured by the British during the revolt against colonial rule
* * *
The Supreme Court has granted certiorari in the case of al-Marri v Pucciarelli, a matter involving one of the most extreme executive actions since Roosevelt’s WWII internment of Japanese-Americans.
Ali Saleh al-Marri (pic), a legal US resident, has been held without charge in solitary confinement in a US Navy brig in South Carolina for five and a half years.
Al-Marri is likely to take its place with the Rasul/Al-Odah, Hamdi, Hamdan and Boumediene cases as black-letter law in the “war on terror” jurisprudence produced by Bush administration excesses.
* * *
George Bush has made Ali al-Marri’s life a misery, but Republicans are equally dangerous out of office.
Consider Lyndon Johnson’s newly-disclosed comments on Republican dirty tricks in 1968, recently in the news.
Robert Parry was reminded how, 40 years ago during a presidential election, Richard Nixon’s intermediaries sabotaged South Vietnamese participation in the Paris peace talks, which the lame-duck Democrat LBJ had called to end the war in Vietnam.
This they did by promising to get the South Vietnamese a better deal after January 20.
Instead, history records the Vietnamese got another six and a half years of bloody war.
The Democrats may have sent similar feelers to the Iraqi government this year concerning the proposed US-Iraqi Status of Forces Agreement.
Such signals would have undermined Bush’s hardline bargaining stance with Iraq and could help explain a SOFA that is reportedly more favourable to the Iraqis.
That’s politics. Yet, Republicans seem to surpass Democrats in executing dirty tricks.
Now, with six weeks to go till they lose power, and fuelled by unbounded arrogance, the Bush administration has put mischief in overdrive.
Last-minute regulations and executive orders are the key.
One Interior Department rule, for instance, purports to withdraw Congress’s authority to prevent mining on public lands.
A Bushwah claims to strip some federal employees of their collective bargaining rights.
The Republicans also sabotaged regulation of toxic substances and hazardous chemicals in the workplace.
It’s the Environmental Protection Agency and the Interior Department where Republican vandalism has been most pronounced.
For instance, the Bush administration – in a parting shot – forced through a regulation backed by the National Rifle Association to allow loaded and concealed weapons in national parks. That should provide great hunting for NRA members.
The most politicised regulatory areas, e.g. environment, will require Mr Obama’s urgent attention.
As TruthDig notes, “Not since 1861 have we watched the last gasps of an outgoing administration with such anxiety” and the blog warns of “ideological mischief” by the secretive Bush administration in its dying days.
Countless extralegal or merely unsavoury edicts of the Bush administration will need to be undone by Mr Obama.
The Bushwhacking of rules will give a heavily Democratic Congress a chance to use the regulation disallowance law, the Congressional Review Act.
It was passed by Republicans in 1996 and used once – against Bill Clinton.
It seems certain that Obama will have the numbers he needs in the Senate to overturn Bush regulations.
* * *
A lame-duck president can also issue pardons.
What if George Bush issued pre-emptive pardons for criminal acts of administration officials?
Jonathan Turley considers this question in the American Chronicle.
Slate speculates what individuals might be pardoned by Bush, while The Washington Independent’s Daphne Eviatar reports the legal controversy surrounding possible blanket pardons for torture.
Besides regulations and pardons, there are records and archives. Records can sometimes disappear, be altered or even – believe it or not – destroyed.
The National Archives felt obliged to send letters to Bush public servants warning them not to steal records as they leave their jobs.
ProPublica has helpfully noted which documents can be legally shredded by an outgoing government.
At the same time, “controversial” political appointees are being embedded in civil service jobs where they can continue to wreak havoc under a new administration.
As The Washington Post’s Dan Froomkin reports, the practice is called “burrowing”.
Naturally, public service unions are keen to have the names of the burrowers.
* * *
Department of Justice lawyers in Miami recently celebrated their first-ever conviction under the US Torture Act.
But the conviction of American-born Charles Taylor Jr for torturing the subjects of his dictator father in Liberia may have established a worrisome precedent: it could be used in future against officials of the present US government.
Law prof Peter Erlinder (pic) argues at Jurist, that the Taylor precedent could be used to prosecute Bush officials.
The Washington Monthly writer thinks the best way to start is to declare the Naval Observatory – home of the Vice-President, Dick Cheney – a crime scene.
Thursday, December 11, 2008
Levin, McCain Release Executive Summary and Conclusions of Report on Treatment of Detainees in
A major focus of the Committee's investigation was the influence of Survival Evasion Resistance and Escape (SERE) training techniques on the interrogation of detainees in
The Committee concluded that the authorization of aggressive interrogation techniques by senior officials was both a direct cause of detainee abuse and conveyed the message that it was okay to mistreat and degrade detainees in
Chairman Levin said, "SERE training techniques were designed to give our troops a taste of what they might be subjected to if captured by a ruthless, lawless enemy so that they would be better prepared to resist. The techniques were never intended to be used against detainees in
Senator McCain said, "The Committee's report details the inexcusable link between abusive interrogation techniques used by our enemies who ignored the Geneva Conventions and interrogation policy for detainees in
Chairman Levin also said: "The abuses at Abu Ghraib, GTMO and elsewhere cannot be chalked up to the actions of a few bad apples. Attempts by senior officials to pass the buck to low ranking soldiers while avoiding any responsibility for abuses are unconscionable. The message from top officials was clear; it was acceptable to use degrading and abusive techniques against detainees. Our investigation is an effort to set the record straight on this chapter in our history that has so damaged both
In the course of its more than 18-month long investigation, the Committee reviewed hundreds of thousands of documents and conducted extensive interviews with more than 70 individuals.Executive Summary and Conclusions [PDF]
Statement of Senator Levin
Part I of the Committee's Inquiry into the Treatment of Detainees in U.S. Custody - June 17, 2008
Part II of the Committee's Inquiry into the Treatment of Detainees in U.S. Custody - September 25, 2008
Friday, December 5, 2008
A Court for a New America
By ROGER COHEN
Of the many issues that have soured relations between Europe and the United States under the Bush administration, few have been as poisonous as America’s refusal to join the world’s first permanent war crimes court here. The snub has been seen as a symbol of U.S. contempt for the rule of law.
In one of his last acts as president, Bill Clinton signed the founding treaty of the International Criminal Court, but the signature never led to U.S. ratification. On the contrary, President Bush withdrew the signature.
This remarkable, and gleeful, “unsigning” was followed by an aggressive campaign to oblige countries to make a formal commitment, under threat of U.S. reprisals, never to surrender U.S. citizens to the court.
Tom DeLay, the former Republican House leader, caught the snarling Bush-Cheney view of the institution when he referred to a “kangaroo court” that was a “clear and present danger” to Americans fighting the war on terror.
As a result, I can think of no better place for President-elect Barack Obama to start in signaling a changed American approach to the world, and particularly its European allies, than the International Criminal Court. Even short of American membership, which would involve a tough battle in Congress, there is much he can do. But “re-signing” followed by ratification should be Obama’s aim.
The effect of U.S. rejection of the court, combined with the trashing of habeas corpus at Guantánamo Bay, has been devastating. Allies from Canada to Germany that are court members have been dismayed by the U.S. dismissal of an institution they see doing evident good.
Other smaller nations from Latin America to Africa, browbeaten by the United States on the issue of the court, have looked elsewhere for lost military or financial support. The American idea, grounded in legal principles, has been undermined.
It’s time to look again at the International Criminal Court. Over the past six years, the court has achieved what Philippe Kirsch, its Canadian president, called “a great deal of acceptability.” There are now 108 member countries, including every European Union nation except the Czech Republic, which appears set to join.
The United States stands alone among major Western industrial powers in rejecting the court: it has in effect deserted those powers’ attempt to mark a new century with a new commitment to eradicating genocide and crimes against humanity by ensuring there is no impunity for them. Washington has broken ranks with the Western liberal tradition of which it should be a cornerstone.
Initial U.S. fears that the court would be politically motivated have proved groundless. The court’s respect for the principle that it can exercise its jurisdiction only when national courts prove unwilling or unable to do so has proved unbending. Attempts to bring British forces in Iraq before the court for alleged crimes have been rejected by the prosecutor, Luis Moreno-Ocampo of Argentina.
Obama should now confront U.S. responsibility, and signal a new commitment to multilateralism, in his attitude toward the court. After the terrible decade of the 1990s, with its genocides in Bosnia and Rwanda and the loss there of a million lives while the United States and its allies dithered, it is unconscionable that America not stand with the institution that constitutes the most effective legal deterrent to such crimes.
The International Criminal Court has filed charges against alleged war criminals in Congo, Central African Republic, Uganda and Sudan since it started work in 2002. The first trial, involving a Congolese warlord, Thomas Lubanga, is set to begin in January.
But it is in Sudan that the incoherence of American policy toward the court has been most evident. The United States is against impunity for the genocidal crimes in Darfur, yet it is not a member of the court seeking to prosecute those responsible.
The court has issued arrest warrants for a former Sudanese government minister, Ahmad Harun, and for Ali Kushayb, a leader of the government-backed janjaweed militia. In July, it requested an arrest warrant for Omar Hassan al-Bashir, the Sudanese president, on charges of genocide, but judges are still reviewing whether to push ahead with the prosecution.
When I asked Brooke Anderson, Obama’s chief national security spokeswoman, about policy toward the court, I received this e-mail response: “President-elect Obama strongly supports the I.C.C.’s efforts to investigate and prosecute those responsible for atrocities in Sudan.”
That’s a good start and a good signal.
Obama should follow up by making sure that, even if court membership is not quickly attainable, the United States plays a part in the court’s 2010 review conference. This will address critical issues including how to define the crime of aggression, and may extend to whether the court can exercise jurisdiction in cases involving terrorism and drug-trafficking.
The next president should also ensure that the United States cooperates with the court in providing information and assisting in making arrest warrants effective. Its influence on the court’s credibility could be enormous.
Only by aligning America again with international law can the damage inflicted on America’s image and appeal by the Bush administration be undone.
Thursday, December 4, 2008
One of Barack Obama's first acts as president should be to instruct his attorney general to appoint an independent prosecutor to initiate a criminal investigation of former Bush Administration officials who gave the green light to torture.
At Obama's press conference on Dec. 1, he spoke of upholding America's highest values as he introduced Eric Holder as his choice for attorney general. Holder insisted there was no tension between protecting the people of the United States and adhering to our Constitution.
A few months ago, Holder was even more explicit. "Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the use of procedures that violate both international law and the United States Constitution," he said. "We owe the American people a reckoning."
The day of reckoning is fast upon us.
If Obama and Holder want to adhere to our Constitution and uphold our highest values, they must pursue those in the Bush Administration who violated that Constitution, broke our laws, and tarnished our values.
Read the words of Lt. Gen. Antonio M. Taguba, who investigated the Abu Ghraib scandal for the Pentagon. "There is no longer any doubt as to whether the current administration has committed war crimes," he concluded. "The only question that remains to be answered is whether those who ordered the use of torture will be held to account."
Despite Taguba's words and reams of documentation supporting his statement, there has been little discussion about holding officials accountable for their design and implementation of the torture program.
We need to make it clear, just as we do in cases with the most minor offenses, that actions have consequences. To simply let those officials walk off the stage sends a message of impunity that will only encourage future law breaking. The message that we need to send is that they will be held accountable.
A popular refrain in Washington these days is that criminal prosecutions would be an unnecessary look backward. Some argue that in order for the new administration to move forward, presidential pardons should be granted and a Truth Commission assembled to investigate the circumstances that gave rise to the brutal interrogations and deaths of prisoners in Afghanistan, Iraq, Guantanamo Bay and CIA black sites around the world.
But pardons would be the final refuge for an administration whose egregious violations of human rights have, for all too long, gone unpunished. And a Truth Commission is not applicable.
This is not Latin America; this is not South Africa. We are not trying to end a civil war, heal a wounded country and reconcile warring factions. We are a democracy trying to hold accountable officials that led our country down the road to torture. And in a democracy, it is the job of a prosecutor and not the pundits to determine whether crimes were committed.
Criminal prosecutions are not about looking to the past; they are about creating a future world without torture. They will be the mark of the new dawn of America's leadership and our new era of accountability.
Prosecuting these officials would help the United States regain its moral standing in the world and to prove our commitment to upholding international human rights standards.
In his first nationally televised interview, President-elect Barack Obama made this promise: "I have said repeatedly that America doesn't torture. And I'm going to make sure that we don't torture."
The best way to do that is to prosecute those who designed the torture policies.
Michael Ratner is president of the Center for Constitutional Rights and author of "The Trial of Donald Rumsfeld: A Prosecution by Book." He can be reached at firstname.lastname@example.org.