From Roger Fitch and our friends down under at Justinian

Roger Fitch Esq • November 13, 2009

Our Man in Washington

Gitmo closure looms … FBI releases documents on extraordinary rendition … Rendition lawsuits bogged down in US courts … All’s well that ends well for Ali Al-Marri

The Congressional Research Service has a report out on the legal issues involved in closing Guantánamo.

Strange, that a prison never authorised by Congress in the first place should be so hard to shut down.

The Attorney General, Eric Holder, is expected to announce by November 16 which detainees will be sent to the US for trial in civil courts and which will be tried in “reformed” military commissions.

If commissions are used, Obama will have to rely on the few Military Commissions Act 2009 offences that are actually war crimes.

That doesn’t include “material support for terrorism,” invented by the Bush Pentagon and used to “convict” David Hicks, Hamdan and al-Bahlul.

As I reported August 5, the Obama administration has disowned the “material support” offence, and tried – unsuccessfully – to have it omitted from the new MCA.

Joanne Mariner has more on these commissions.

* * *

The AG has announced a new policy on state secrets, used regularly to exterminate cases against the government and others, e.g. telcos, even though the Classified Information Procedures Act (CIPA) adequately protects sensitive evidence.

As predicted, the policy “change” was a prelude to government wriggles in two cases, the East Coast’s Horn v Holder and the West Coast case of Mohamed v Jeppesen Dataplan.

The Horn case involves illegal government spying, while the Jeppesen case is about extraordinary rendition and proxy torture.

Sure enough, the government decided to pay $3 million to Richard Horn to settle claims it eavesdropped in Burma on this drug enforcement agent.

That settlement followed a decision by DC district court judge Royce Lamberth gutting the government’s case.

The settlement is all part of a Machiavellian DoJ plan, designed to maintain the unlawful powers Bush acquired.

Paying off plaintiffs at $3 million a pop, however, could prove costly.

The Legal Times Blog has more.

The government now hopes to get Judge Lamberth to withdraw his rulings against the it in the Horn case – in the settlement agreement, the plaintiff agrees not to oppose the government’s motion for vacatur of Judge Lamberth’s orders.

The blogs at Legal Times and Firedoglake explain.

Judge Lamberth’s rulings have already been cited by plaintiffs in the West Coast Al Haramain case, and their amicus in Horn opposes the vacatur.

DoJ state secret claims now smugly recite, “We are not invoking this privilege to conceal government misconduct or avoid embarrassment, nor are we invoking it to preserve executive power”.

Emptywheel blog comments.

* * *

The government won a state secrets victory of sorts in the 9th circuit, which has ordered a rehearing of a decision rejecting that defence in the Jeppesen (Boeing) rendition case.

At the same time, the government’s claim that extraordinary rendition is a state secret received a setback this month when the FBI provided the ACLU with documents about its involvement in Guantánamo interrogations.

A 2002 memo, sent to the FBI legal counsel by a supervisory agent at Gitmo, was among documents released.

It analyses all of the Bush administration’s interrogation techniques and concludes that 10 of them “are not permitted by the US Constitution”, and that information obtained through them “will not be admissible in any criminal trial in the US”. Several also violated the Torture Statute.

The memo describes the ultimate interrogation category – rendition:

“Detainee will be sent off GTMO, either temporarily or permanently, to Jordan, Egypt, or another third country to allow those countries to employ interrogation techniques that will enable them to obtain the requisite information.” (my emphasis)

That’s clear enough. Or as the FBI commented:

“In as much as the intent of this category is to utilize, outside the US, interrogation techniques which would violate 18 USC s 2340 if committed in the US, it is a per se violation of the US Torture Statute. Discussing any plan which includes this category, could be seen as a conspiracy to violate 18 USC 2340. Any person who takes any action in furtherance of implementing such a plan, would inculpate all persons who were involved in creating this plan. This technique can not be utilized without violating US Federal law.”

Daphne Eviatar (pic) has more.

With rendition lawsuits bogged down in both the US and the UK, it was left to Italy to do the right thing as a court in Milan convicted 23 US citizens, mostly CIA agents, of a 2003 kidnapping in that country.

The Washington Post has more.

Scott Horton comments on the likely consequences, and the LA Times bravely praises the decision.

* * *

There’s been a disappointing result in the most notorious rendition case, that of Maher Arar.

In a sua sponte full court rehearing, the 2nd circuit ruled 7-4 that the Canadian has no remedy for the wrong committed against him when he was seized by the US at JFK airport and sent to Syria for torture.

In a 180 page decision, two-thirds of it dissents, the court divided along party lines with one apostate on each side.

The seven judges in the majority were all appointed by Bushes with the exception of one Clinton man.

The four minority judges were all appointed by Clinton, save one George Bush appointee who was once a Clinton-appointed district court judge.

Three Clinton appointees didn’t participate.

Glenn Greenwald and Scott Horton comment.

* * *

It was October four years ago when I first wrote about Ali Al-Marri.

At that time his case looked to be one of the major outrages in US legal history. Now all has ended well.

Rather than suffer indefinite military detention, US resident Al-Marri was convicted in a real federal court and sentenced to eight years.

With good behaviour, he could be out in five years.

The judgment is here.

Unlike José Padilla, the US citizen held in domestic military detention before being handed over for civil trial, Al-Marri received credit for brig time and brig mistreatment.

From Roger Fitch and our friends down under at Justinian

Roger Fitch Esq • October 28, 2009

Our Man in Washington

A few big cases get a hearing despite US Supremes’ shrinking docket … Latest notes from the Guantánamo turnstile … Government dismayed at decision to extend habeas to US prisoners held in Afghanistan jails … Obama’s “terror” policy looks strikingly similar to George Bush’s

The new Supreme Court of the UK opened this month.

It has a user-friendly website and there’s even a UKSC blog patterned on Scotusblog.

US media made the doubtful claim that the new British court was modelled on the old American one, but is there really so much to admire?

Our court has a narrow, shrinking docket of around 80 cases out of 8,000 petitions.

At the start of its October term, it declined to hear 2,000 cases.

The US cable network CSPAN just published a poll on what Americans know about the court.

It’s not a lot.

Fifty-two percent didn’t know the CJ had to be a lawyer.

Despite these flaws, major constitutional cases have been accepted.

For example, Sullivan v Florida, which considers that state’s sentences to life without parole for children.

Joe Sullivan was 13-years-old and committed no murder.

There will also be important “national security” cases.

Despite Mr Obama’s efforts to moot the appeal of the Guantánamo Uighurs, Kiyemba v Obama, this crucial case will be heard by the Supreme Court.

The court will also likely hear the Kiyemba II case.

The government’s appeal of the “torture photos” case, however, will probably not proceed.

A new law allows the Defence Secretary to block the release of uncongenial photos regardless of FOI regulations.

Videos of animal torture are another matter.

US v Stevens, one of four big cases profiled by Liliana Segura, has already been argued before the Supreme Court .

* * *

The oral argument in Stevens ended up discussing human sacrifice.

That sacrifice can sometimes result from human torture and human torture remains very much in the news.

The ACLU, for example, has a dedicated Torture Report web site, and the National Security Archive has an online Torture Archive.

The Public Record, by contrast, has a handy list of 50 people suitable for war crimes prosecutions, including a number of torture abettors.

Torture is in the courts, too. Important rulings were issued on both sides of the Atlantic on the same October day.

In Washington, Judge Royce Lamberth (snap) accepted the CIA’s claims that no torture was being concealed in FOI documents sought by the ACLU.

Lamberth refused to even look at the documents in question.

While a US judge was ruling that Guantánamo detainee Khalid Sheikh Mohamed’s torture could be kept secret, a UK court ruled that the torture of former Guantánamo detainee Binyam Mohamed must be disclosed by MI5.

The Guardian has more.

* * *

By flouting the orders of the presiding Guantánamo judge, Thomas Hogan (pic), Obama’s lawyers have drawn a contempt motion.

Slate has an article on other DoJ obstructions, e.g. that of decisions by habeas judges who ordered the release of Guantánamo prisoners.

A few of these rulings have been implemented.

In my last post I reported that two Kuwaitis had been ordered released by Judge Colleen Kottar-Kotelly and how the Obama administration had done nothing to repatriate them.

The return of the Kuwaitis is sought by their government so there is no impediment to their return.

On October 8, one of the Kuwaitis, Khalid Al-Mutairi, was sent home, although the Pentagon continues to ignore the court’s order for the other man, Fouad Al-Rabiah.

Now Al-Rabiah’s lawyers have filed contempt charges against the Secretary of Defence and the Guantánamo commander.

The motion is here.

Mr Obama also obeyed a court order for the release of a Yemeni feared radicalised by US mistreatment.

Another Guantánamo decision has also been followed – the order of Judge Rosemary Collyer for the release of video tapes in Al-Qahtani.

The DoJ provided a letter to Collyer admitting to the existence of this torture evidence, already conceded in the ACLU’s FOI.

Al-Qahtani, you may recall, is the detainee whose “war crimes” case was dismissed by the Military Commissions’ Convening Authority, Susan Crawford, on the basis that torture had occurred.

ProPublica has Guantánamo updates here, and here.

Guantánamo’s civilian lawyers are fighting their own battle against the government.

Tom Wilner is suing the National Security Administration on behalf of 23 lawyers whose communications were monitored.

An appeal is underway in the 2nd Circuit.

* * *

In the recent Al Maqaleh case (see my April 13 post), Judge John Bates (pic) extended habeas to prisoners the US brings from other countries and jails in Afghanistan.

The decision is on appeal in the DC circuit.

In a Bush-like feint to help its appeal, the government promised new rights for Bagram prisoners.

The Pentagon claims the procedures resemble a Geneva “Article 5” hearing (AR190-8 under the US Army regs), but it’s really nothing more than a restaging of the discredited Combat Status Review Tribunals from Guantánamo.

Lawyers for the Bagram detainees can detect no change of policy.

The ACLU has meanwhile sued the CIA and Pentagon for a response to its FOI request for Bagram documents, e.g. the identity and nationality of prisoners.

Jurist has more.

* * *

It’s not only Bagram where Mr Obama’s “terror” policy mimics George Bush.

ProPublica has compiled a revealing comparison of Bush and Obama “counter-terrorism” approaches.

Daphne Eviatar finds Obama tracking Bush in the torture cases, while Firedoglake blog sees a similar Bush echo in Obama’s “new” state secrets policy.

Both the New Statesman and the New York Times have commented on the converging policies of Barack Obama and George Bush.

* * *

The university town of Amherst, Massachusetts, has offered to take two Guantánamo detainees – the Russian Ravil Mingazov, a former ballet dancer, and the Algerian Ahmed Belbacha, a former UK resident.

Neither can return safely to his home country and Belbacha is the only former UK resident refused by the British.

Perhaps Amherst wants to atone for the sins of its namesake, Field Marshal Jeffery Amherst, (1717-1797).

Baron Amherst (pic) was a prescient and early advocate of biological warfare, reputedly supporting the practice of giving smallpox-infected blankets to the native Americans.

Hold Gates in Contempt...

U.S. District Judge Colleen Kollar-Kotelly on September 17, 2009, ordered the U.S. Government to release Al Rabiah “forthwith.” Yet, three weeks later, the U.S. Government has refused to comply with the judge’s order.

“Because Respondents [Secretary of Defense Robert Gates and Rear Admiral Tom Copeman] have made clear that they will not comply with the Release Order voluntarily, civil contempt is an appropriate remedy,” the attorneys wrote in a motion filed today with U.S. District Court for the District of Columbia. Rear Admiral Tom Copeman is the current commander of Joint Task Force Guantanamo.

Gates and Copeman “have made clear that they will do nothing to comply with Al Rabiah’s Release Order unless and until they are forced to do so by the Court,” the attorneys wrote in an accompanying memorandum. “In defiance of the Release Order, Respondents have failed to take any steps to facilitate Al Rabiah’s release and have no justification for this failure.”

The attorneys note in the court documents that the Government of Kuwait has repeatedly requested Al Rabiah’s prompt repatriation. “Al Rabiah could and should have been returned to Kuwait at the same time, and on the same aircraft, as Petitioner Khalid Al Mutairi, who was finally returned to Kuwait on October 8, 2009,” they wrote.

Fouad Al Rabiah has been held at Guantanamo for nearly eight years, during which he was subjected to abusive and coercive interrogation methods. His attorneys and the Government of Kuwait for years sought for him a hearing before an impartial judge independent of the U.S. Administration to ensure due process. That hearing finally took place on August 26, 2009, and on September 17, 2009, the court ordered his release.

Al Rabiah, 50, has an established history of international relief work. In October 2001, he was in Afghanistan coordinating delivery of more than 30 trucks of aid supplies from Meshad, Iran, to refugees on the Afghani-Iranian border and to hospitals in Kandahar. Since 1981, Al Rabiah has been a manager for Kuwait Airways and a father of four children.

Al Rabiah is the second Kuwaiti detainee to be ordered released following last year’s historic Supreme Court ruling that granted fair hearings to the detainees. Judge Colleen Kollar-Kotelly on July 29, 2009, ordered the release of Kuwaiti detainee Khaled Al Mutairi who was returned to the Government of Kuwait on October 8, 2009.

About the Kuwaiti Family Committee:

The Kuwaiti Family Committee’s mission is to seek justice for the remaining Kuwaiti detainees at Guantanamo Bay. The organization is led by Khalid Al Odah, the father of Guantanamo detainee Fawzi Al Odah, and includes in its membership approximately 100 relatives of the prisoners. They are only asking for due process of law for their fathers, brothers, and sons, including speedy proceedings either to release them or to charge and try them in a fair process.

From Roger Fitch and our friends down under at Justinian

Roger Fitch Esq • October 2, 2009

Our Man in Washington

Roger Fitch traces the last gasp of the Guantánamo military commissions … Government continues to ignore court orders … Habeas appeals abound … And civil torture suits gather pace

President Obama is celebrating his first successful appellate court appointment, to the 2nd circuit, Gerard Lynch.

He hopes to get Andre Davis on the 4th.

Judge Davis was first nominated by Bill Clinton, but the Republicans succeeded in blocking his confirmation for all these years.

FindLaw’s Writ has more on Davis and the 4th circuit.

Legal Times has a report on the Bill to add new judges to the circuit courts.

* * *

New judges on politicised courts such as the 4th and DC circuits will not come a moment too soon.

Consider the latest DC Court of Appeals decision extending governmental immunity to the corporate mercenaries who provided interrogators and translators to Abu Ghraib prison during the infamous 2003 scandal.

A divided panel headed by Judge Laurence Silberman (seen here) unexpectedly threw out the civil torture case.

The opinions are here.

An en banc appeal may follow, with new judges on board.

Scott Horton has more and Salon had the dope on the Republican activist Silberman as far back as 2004.

Other dodgy decisions of the partisan DC court are currently under appeal to the Supreme Court, e.g. the circuit’s claim that immigration law trumps the habeas rights of the Chinese Uighurs held at Guantánamo.

McClatchy News has more on Kiyemba I, while Andy Worthington reports the significance of the DC Circuit’s Kiyemba II mandate.

The first of only eight habeas cases lost on the merits by Guantánamo detainees is now on appeal to the DC circuit, while the government is appealing a few of the 30 it has lost.

* * *

Little by little, the primordial habeas actions from 2002, remanded by the Supreme Court for action in 2004, near completion, after almost eight years of ceaseless, bad faith obstruction by US governments.

The earliest Guantánamo habeas was that of David Hicks, the subject of an Andrew McCarthy piece in the latest National Review.

Aspects of the article about “Mohammed Dawood” ring false to me, but McCarthy is outraged that Hicks might be exonerated if “material support for terrorism” isn’t a war crime (see my post of August 5).

Hicks’s fellow petitioners in the 2004 Supreme Court decision in Rasul v Bush have all been released.

Rasul and Iqbal currently have a civil suit for torture that has been to the DC circuit twice, while Mamdouh Habib is fighting a similar case in Australia.

All but two of the 12 petitioners in the companion Al-Odah (Kuwaiti) case have also been released, or exonerated by habeas, although sadly, a Kuwaiti freed by George Bush, Al-Ajmi, ended up a suicide bomber.

Fawzi Al Odah, one of four Al Odah petitioners still held, was the first Kuwaiti to lose his habeas.

Scotus Blog and the Miami Herald have more.

Others have been more successful.

Judge Colleen Kollar-Kotelly (pic) recently ordered the release of Khalid Al-Mutairi, in a blistering judgment that the US ignored.

He’s still imprisoned.

Kollar-Kotelly has also ruled in favour of Fouad Al-Rabiah.

As it turns out, Al-Rabiah, an aeronautical engineer with Kuwaiti Airways, was confused with another person.

Here’s the opinion.

Judge Kollar-Kotelly scornfully noted that Al-Rabiah’s coerced “confessions” were never believed, even by his interrogators, yet the government sought to rely on them.

Scotusblog has more.

The last Al Odah habeas hearing, for the law student Fayiz Al-Kandari, is scheduled for October.

Both Al-Rabiah and Al-Kandari were charged in military commissions.

Even so, Al-Rabiah was found not to be an “enemy combatant”.

In other words, Al-Rabiah isn’t even an enemy, let alone a war criminal.

He’s the second man, after Mohammed Jawad, found innocent in DC of participating in war, while charged at Guantánamo with “war crimes.”

* * *

A few military commissions are still bubbling along at Guantánamo and the ACLU has sued for a legal opinion by Obama’s Office of Legal Counsel describing the constitutional rights of Gitmo detainees in military trials.

The press release is here.

In what looks likely to be a pattern adjournment, a military commissions judge, Stephen Henley (snap), has granted a 60-day delay in the proceedings of the military commission for “9-11 plotter” Ramzi bin al-Shibh so that the government can …

“determine whether he can be transferred or released, or prosecuted for criminal conduct before a military commission or Article III court; or provided other lawful disposition consistent with the national security and foreign policy interests of the United States and the interests of justice.”

Bin al-Shibh had previously sued in the DC circuit court to stop his impending commission.

Scotus Blog has more.

The court deferred consideration.

Judge Henley had earlier declined to let the military lawyers inspect the particular torture dungeon where bin al-Shibh was held and had denied access to interrogation techniques.

Meanwhile, a brief with 50-pages of chapter and verse about the faults of the moribund commission system has been filed. It is part of the latest and possibly last appeal to the Court of Military Commissions Review, that of bin Laden’s media director Ali Hamza Al-Bahlul.

While our own media persist in calling them “war crimes courts,” the military commissions have little connection with the law of war, as Guantánamo defence counsel Major David Frakt keeps pointing out.

Maj Frakt (pic) reckons only one charge brought at Gitmo was actually a war crime – perfidy.

Or it would have been, if there had been a war on at the time.

* * *

Those readers who are fascinated by the disturbing tendency of Americans to use self-serving titles and acronyms for battles and Bills may be interested to hear of a new foil to the USA PATRIOT Act (i.e. the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, 2001).

The Bill’s sponsors are calling it the JUSTICE Act (the Judicious Use of Surveillance Tools in Counterterrorism Efforts Act).

God Save America.

Fitch

While Obama battles in three courts to keep secret the Bush CIA’s abductions, he has begun his own renditions and actively defends the extralegal practice.

In one respect, however, Barack Obama has parted company with Bush – occasionally he obeys court orders.

During August he obeyed two of them.

First, there was the order for release of the Guantánamo detainee Mohammed Jawad by DC district court judge Ellen Huvelle (see my post of August 5).

Daphne Eviatar thought that the government’s capitulation might be due to revelations that it had paid witnesses.

Or perhaps it was the possibility that Jawad was a child of 12 when arrested rather than the 17-year-old the government had claimed, relying on the Pentagon’s now-dubious bone scans.

Despite Judge Huvelle’s (pic, centre) order that Jawad be treated humanely, he was shackled and degraded to the last and his military lawyers only narrowly prevented his delivery to an Afghan prison.

He’s now considering a civil suit for damages.

Scotus Blog and Democracy Now have more.

In another law-abiding breakthrough, Obama finally obeyed the order, by New York district court judge Alvin Hellerstein, for the release to the American Civil Liberties Union of the CIA Inspector General’s 2004 report on the torture program.

Also released were Office of Legal Counsel documents from the Department of Justice here and here.

The ACLU explains the significance and Yale law prof and blogger Jack Balkin comments here.

The now-retired author of the CIA report, John Helgerson, is not happy with the many redactions.

For one thing, the names of those who were disappeared or tortured to death are omitted.

Nonetheless, the document dump, courtesy of the ACLU, has been a goldmine.

The New York Times excerpted the torture protocol Guidelines for Interrogators, and The Public Record latched onto the rendition procedures in a background paper that also described interrogation techniques.

Emptywheel Blog was quick to extract the most interesting Office of Legal Counsel nuggets, including a previously unreleased torture opinion by the odious Steven Bradbury (pic), hastily thrown together in 2006 after the Supreme Court affirmed that Common Article 3 applied to all detainees in US custody.

Bradbury’s opinions were mostly directed to CIA general counsel John Rizzo.

For years these gentlemen acted in their respective positions as head of OLC and CIA general counsel, because the Senate never had the stomach to confirm them.

In his 2006 opinion, Bradbury cheerfully parrots back the CIA’s claims that its secret prisons rigorously comply with Common Article Three’s prohibitions against cruel, inhuman and degrading treatment.

Bradbury finds everything – violence to the person, blindfolding, indefinite solitary confinement, persistent white noise, 24-hour lighting of cells, shackling – easily squared with the Geneva Conventions.

After all, he said, “While shackled, detainees are able to walk comfortably. Used in this limited and carefully calibrated way, shackling does not violate Common Article 3”.

And so on, for all techniques.

The Washington Independent has more on this memo, which could still be in effect today.

Another of Bradbury’s memos, dated July 20, 2007, gave the CIA guidance on black site interrogations then taking place 10-months after Mr Bush claimed he had closed all secret prisons.

Any suggestion of good faith in the preparation of these memoranda or the CIA’s reliance upon them vanishes when we learn that Bradbury provided hands-on advice, apparently mid-torture, on the treatment of a particular detainee and here and here again.

Emptywheel blog noticed the suspicious exchange of hand-carried, unsigned and undated “legal” notes – presumably the way things are done in other criminal enterprises, e.g. the mafia.

As Emptywheel also discovered, the actual document “Legal Principles Applicable to CIA Detention and Interrogation of Captured Al-Qa’ida Personnel” is nowhere to be found in the I-G’s CIA report.

A draft list of legal techniques is provided.

As the New York Times notes the ACLU documents show tight CIA control over every aspect of the (illegal) interrogations.

Happily, Obama has given the responsibility for future (illegal) interrogations to a non-CIA unit, but one still under an ex-CIA official, John Brennan.

Earlier this year, Mr Obama had to abandon Brennan’s appointment as CIA director for fear the Senate would never confirm him due to his association with CIA interrogations under George Bush.

The I-G’s CIA report contained a laundry list of examples of war crimes and tortures inflicted by the Bush administration on those classified as enemies.

One of them was the threatened murder of the children of Khalid Sheikh Mohammed (seen here).

One wonders if similar threats of death to the first-born son were made by operatives of the Bush mafia against independently-minded DC judges.

Some judges, after initial outbreaks of courage, lost their nerve – e.g. James Robertson of Hamdan fame.

Robertson stopped the first Hamdan military commission, but allowed the second, equally invalid one, to go ahead.

In fact, this month Judge Robertson saw fit to deny habeas to a one-legged man taken prisoner in a hospital.

The CIA report also has an appendix called “Draft Guidelines on Medical and Psychological Support to Detainee Interrogations”, which should be particularly relevant for the accreditation boards of doctors and psychologists.

Unfortunately, the most interesting parts are blacked out.

Following the release of the CIA report Attorney General Eric Holder announced, as predicted, an extremely limited (only “excessive” waterboarding will be reviewed) inquiry into the CIA’s crimes.

No one now recalls that water torture, whether “excessive” or not, has always been illegal.

Dahlia Lithwick wonders if half an investigation is worse than none, but for the Wall Street Journal even Holder’s limited inquiry is too much.

HR 3326

H.R.3326, Department of Defense Appropriations Act, 2010

(Also note, 8/3/2009: Received in the Senate and Read twice and referred to the Committee on Appropriations.)

Sec. 8119. (a) None of the funds made available in this or any prior Act may be used to release an individual who is detained, as of April 30, 2009, at Naval Station, Guantanamo Bay, Cuba, into the continental United States, Alaska, Hawaii, the District of Columbia, or any of the United States territories of Guam, American Samoa (AS), the United States Virgin Islands (USVI), the Commonwealth of Puerto Rico and the Commonwealth of the Northern Mariana Islands (CNMI).

(b) None of the funds made available in this or any prior Act may be used to transfer an individual who is detained, as of April 30, 2009, at the Naval Station, Guantanamo Bay, Cuba, into the continental United States, Alaska, Hawaii, the District of Columbia, or any of the United States territories of Guam, American Samoa (AS), the United States Virgin Islands (USVI), the Commonwealth of Puerto Rico and the Commonwealth of the Northern Mariana Islands (CNMI), for the purposes of detaining or prosecuting such individual until 2 months after the plan detailed in subsection (c) is received.

(c) The President shall submit to the Congress, in writing, a comprehensive plan regarding the proposed disposition of each individual who is detained, as of April 30, 2009, at Naval Station, Guantanamo Bay, Cuba, who is not covered under subsection (d). Such plan shall include, at a minimum, each of the following for each such individual:

(1) The findings of an analysis regarding any risk to the national security of the United States that is posed by the transfer of the individual.

(2) The costs associated with not transferring the individual in question.

(3) The legal rationale and associated court demands for transfer.

(4) A certification by the President that any risk described in paragraph (1) has been mitigated, together with a full description of the plan for such mitigation.

(5) A certification by the President that the President has submitted to the Governor and legislature of the State or territory (or, in the case of the District of Columbia, to the Mayor of the District of Columbia) to which the President intends to transfer the individual a certification in writing at least 30 days prior to such transfer (together with supporting documentation and justification) that the individual does not pose a security risk to the United States.

(d) None of the funds made available in this or any prior Act may be used to transfer or release an individual detained at Naval Station, Guantanamo Bay, Cuba, as of April 30, 2009, to the country of such individual's nationality or last habitual residence or to the freely associated States of the Federated States of Micronesia (FSM), the Republic of the Marshall Islands (RMI), or the Republic of Palau, or to any other country other than the United States, unless the President submits to the Congress, in writing, at least 30 days prior to such transfer or release, the following information:

(1) The name of any individual to be transferred or released and the country to which such individual is to be transferred or released.

(2) An assessment of any risk to the national security of the United States or its citizens, including members of the Armed Services or the United States, that is posed by such transfer or release and the actions taken to mitigate such risk.

(3) The terms of any agreement with another country for acceptance of such individual, including the amount of any financial assistance related to such agreement.

FYI, from 111-230 DEPARTMENT OF DEFENSE APPROPRIATIONS BILL, 2010 REPORT of the COMMITTEE ON APPROPRIATIONS [to accompany H.R. 3326]:

The Committee on Appropriations submits the following report in explanation of the accompanying bill making appropriations for the Department of Defense, and for other purposes, for fiscal year ending September 30, 2010.

GUANTANAMO BAY NAVAL BASE

The Committee has not provided the $100,000,000 requested to support the relocation and disposition of individuals detained at the Guantanamo Bay Naval Base. The Department of Defense is still awaiting a decision by the Administration on the future of the detention facility at Guantanamo Bay, and these funds are not needed at this time...

ADDITIONAL VIEWS OF REPRESENTATIVES JERRY LEWIS AND C.W. BILL YOUNG ON THE FISCAL YEAR 2010 DEFENSE APPROPRIATIONS BILL

GUANTANAMO BAY

This January, the President signed the executive order to close the Guantanamo Bay Detention Facility. More than five months later there is still no evidence of a plan to carry out this order, and there has been no consultation with the Congress. In fact, just this week the Administration announced that they are extending their Detention Policy Task Force for another six months, because they were not able to sort it all out within the President’s timetable. Despite these difficulties, the suspected plotter of the 1998 Embassy bombings in Africa has already been moved to New York to face trial. The Government of Palau has announced that they will accept some Uighur detainees, and press accounts linked that action to a $200 million payoff by the U.S. Government that the State Department will not confirm or deny. Finally, four Uighur detainees have already been released to Bermuda. Congress and the American public found out about these actions and diplomatic efforts after the fact.

And there is more—detainee transfers have also been made to Saudi Arabia, Chad, and Iraq. We have heard rumors about deals with Yemen, Italy, and Albania. All of this is being done without an assessment of the risks to American people at home and abroad, or an assessment of risk to our U.S. forces, especially since the detainees at Guantanamo include the perpetrators of some of the most horrific terrorist acts against Americans, including 9/11, the USS Cole bombing, and the Embassy bombings in Africa.

Director Mueller of the FBI testified to Congress that bringing these detainees to the U.S. poses risks to national security, including providing financing, radicalizing others, and undertaking attacks in the U.S. Additionally, the Department of Defense has reported that at least 14 percent of former Guantanamo detainees have returned to terrorist activity. This Administration is ignoring or disregarding those risks, and they continue to stonewall the Congress. We need to stop the Administration from rushing to transfer or resettle detainees simply to fulfill a campaign promise.

We commend Chairman Murtha for the inclusion of Ranking Member Lewis’s Guantanamo language in the Managers Amendment. This language, which contains the same requirements in the Commerce/Justice/Science bill that prohibits release or permanent transfer of detainees to the U.S. and requires a risk assessment prior to any transfer for purposes of prosecution, and the language in the Interior bill that expands those restrictions to U.S. territories, has enjoyed bipartisanship support during the Fiscal Year 2010 Appropriations Process. It ensures that the Administration cannot act unilaterally and ignore the concerns of the Congress on such an important matter.

Language re: Guantanamo Detainees in H.R.2847, the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2010 (Passed by House - the Senate version does not include this language)

Sec. 532. (a) None of the funds made available in this or any prior Act may be used to release an individual who is detained, as of April 30, 2009, at Naval Station, Guantanamo Bay, Cuba, into the continental United States, Alaska, Hawaii, or the District of Columbia.

(b) None of the funds made available in this or any prior Act may be used to transfer an individual who is detained, as of April 30, 2009, at the Naval Station, Guantanamo Bay, Cuba, into the continental United States, Alaska, Hawaii, or the District of Columbia, for the purposes of detaining or prosecuting such individual until 2 months after the plan detailed in subsection (c) is received.

(c) The President shall submit to the Congress, in writing, a comprehensive plan regarding the proposed disposition of each individual who is detained, as of April 30, 2009, at Naval Station, Guantanamo Bay, Cuba, who is not covered under subsection (d). Such plan shall include, at a minimum, each of the following for each such individual:

(1) The findings of an analysis regarding any risk to the national security of the United States that is posed by the transfer of the individual.

(2) The costs associated with not transferring the individual in question.

(3) The legal rationale and associated court demands for transfer.

(4) A certification by the President that any risk described in paragraph (1) has been mitigated, together with a full description of the plan for such mitigation.

(5) A certification by the President that the President has submitted to the Governor and legislature of the State to which the President intends to transfer the individual a certification in writing at least 30 days prior to such transfer (together with supporting documentation and justification) that the individual does not pose a security risk tot he United States.

(d) None of the funds made available in this or any prior Act may be used to transfer or release an individual detained at Naval Station, Guantanamo Bay, Cuba, as of April 30, 2009, to the country of such individual's nationality or last habitual residence or to any other country other than the United States, unless the President submits to the Congress, in writing, at least 30 days prior to such transfer or release, the following information:

(1) The name of any individual to be transferred or released and the country to which such individual is to be transferred or released.

(2) An assessment of any risk to the national security of the United States or its citizens, including members of the Armed Services or the United States, that is posed by such transfer or released and the actions taken to mitigate such risk.

(3) The terms of any agreement with another country for acceptance of such individual, including the amount of any financial assistance related to such agreement.

update

Al-Ghizzawi is now allowed to spend some time with his fellow prisoners, some time watching movies, and he can attend some language classes (English). My other client, Razak Ali, has always been in Camp 4-one of the “better” camps at Guantanamo and he has never had the serious health and psychological problems that come with being held in solitary confinement…for literally years. That being said…these years have been very hard for both men.

Their cases are slowly working through the system. Razak Ali’s case was delayed because his original judge had a heavier caseload of Guantanamo cases than the other judges. His case was moved to a different judge and despite the “justice” departments attempts to do everything it can to delay his case it is slowly moving ahead. In Al-Ghizzawi’s case I agreed to a temporary stay of his case so that the Obama Review Team could review his situation. Now that it is clear that the Obama administration is unwilling or unable to move the men that need diplomatic resettlement help I have asked the judge to lift the stay and set a hearing date for his Habeas petition.

Both men have now started their eighth year at Guantanamo. Neither man will ever be charged with wrongdoing. The same people who ran this litigation for the Bush administration are running things for the Obama administration. Those bright attorneys that Obama put into place and which gave some of us great hope for a change are standing like deer in the headlights. It reminds me of the old saying that being smart will only get you so far..or as the kids say “no guts, no glory.” There is definitely a shortage of guts.

Roger Fitch

Roger Fitch Esq • July 1, 2009

Our Man in Washington

“Terrorist Incapacitation” – the new gloss for indefinite detention … If tax lawyers can be indicted for fraudulent advice, why not John Yoo for torture advice? ... Suppressed report on “interrogation policy” due to see the light of day

Michael Jackson’s death provided the perfect cover for a Friday afternoon “bad news dump”, e.g. the strategically leaked report that the Obama administration is drafting a Bush-like executive order to allow indefinite detention of terrorist suspects.

Glenn Greenwald smelled a rat.

Mr Obama’s rumoured move would shortcut Congress’ new legislation restricting his power to bring detainees to the US.

Detainees are challenging the new law as a backdoor attempt to frustrate the Supreme Court’s mandate of habeas in the Boumediene decision.

Quite fortuitously, the Democrat-friendly Brookings Institution simultaneously released its proposed Model Law for Terrorist Incapacitation, TI being the new gloss for indefinite administrative detention.

The report, by security court advocate Ben Wittes, draws on the expertise of tainted and even criminally-implicated Bush appointees such as Jonathan Fredman, the CIA lawyer who flew down to Guantánamo and counselled interrogators that, “If the detainee dies, you’re doing it (torture) wrong”.

The ground has already been prepared with testimony to Congress on existing security detentions.

The discredited military commissions are also back on the agenda.

In Boumediene, the court said the Constitution isn’t something that can be turned off and on like a tap.

But that’s precisely what Congress and Obama have in mind.

Justice (but not Pentagon) lawyers are offering a few morsels of due process, yet it’s still hard to see – after Hamdan – how military commissions can be used for non-war crimes occurring before there was a war or outside theatres of war.

Human rights organisations are calling for public hearings on commissions, and the proposal has drawn criticism in articles by human rights lawyer Deborah Pearlstein (pic) and law prof David Glazier.

* * *

A ruling in José Padilla’s federal civil suit against John Yoo suggests that the notorious torture advocate may actually face trial.

The nowadays neocon Washington Post was appalled.

Perhaps the Post should read some of the Nuremberg transcripts.

As Opinio Juris blogger and Melbourne Uni law professor Kevin Heller point out, a nearly identical prosecution succeeded after WW II.

Scott Horton also found Nuremberg precedents relevant.

Brian Tamanaha has more on Padilla v Yoo.

As he points out, tax lawyers were recently indicted by the Justice Department for providing the same sort of fraudulent advice.

The Wall Street Journal, quick to the defence of its columnist John Yoo, came up with a startling theory: the act of pursuing Yoo could lead to lawsuits against the Obama administration for its decision to close Guantánamo.

* * *

While Guantánamo detainees who have been held for as long as eight years are being released, the Obama administration continues to litigate habeas cases where it has no evidence.

One such case is that of Abdul Rahim al-Ginco.

He’s one of the men subjected to a second Combat Status Review Tribunal when the first one departed from script and found no combatant status.

In fact, al-Ginco was an opponent of the Taliban regime and had been their prisoner. Andy Worthington has the history.

To date most of the detainees (75 percent) have been found not to be “terrorists” when, after years of government obstruction, their habeas cases were considered on the merits.

Even a Republican loyalist, Judge Richard Leon, has frequently felt compelled to find the men innocent.

In al-Ginco, Judge Leon ruled that the intervening imprisonment and mistreatment of a former Taliban or al-Qaida adherent by his own side ended his status as an “enemy combatant” detained in Guantánamo.

Or as Daphne Eviatar (pic) puts it, ”[al-Qaeda] torture broke the bonds of terrorist group membership”.

* * *

The US has been arguing the Leon principle in reverse in the habeas case of the innocent Chinese Uighurs.

They may have been our friends once, but then we mistreated them. Now they may be our enemies and dangerous.

While Mr Obama won’t bring any Uighurs to the US, four have been shipped to Bermuda.

Others are destined for Palau, where few want to go.

The Supreme Court finished its term without acting on the Uighurs’ petition for certiorari and the DC Circuit Court’s astonishing decision that immigration law trumps habeas corpus continues to bind district courts.

* * *

The CIA Inspector-General’s long-suppressed 2004 report on the Bush administration’s “interrogations” policy is due out soon and should have plenty to say about the psychologists who “designed” the system.

In The New Yorker, Jane Mayer says that Leon Panetta, the new CIA director, has fired the psychologists in question.

(Illo: Panetta, © New Yorker.)

The Firedoglake blog reports on the further adventures of the torture consultants, James Mitchell and Bruce Jessen.

Meanwhile, the ACLU is seeking the rest of the Justice Department’s torture memos.

The Emptywheel blog explains the ACLU’s latest FOI suit against DoJ, this time for the post-Hamdan memo by acting Office of Legal Counsel head Stephen Bradbury .

Apparently Bradbury attempted to evade the Geneva Conventions’ Common Article Three, or justify its violation, after the Supreme Court expressly ruled the Article applied.

John Yoo’s memo on the Convention Against Torture is also sought.

Not surprisingly, the American Civil Rights Union (a right-wing foil to the ACLU) thinks the recently-disclosed Bush DoJ torture memos (see my post of April 23) are just great

* * *

The hero of David Hicks’ case, his detailed military counsel Major Michael “Dan” Mori, is now Lt. Col. Mori and a military judge.

Unlike Charles Swift, the Navy officer who won the Hamdan case in the Supreme Court and was forcibly retired, Dan Mori was able to stick with the military until a new regime arrived.

In an interesting historical parallel, Col. Kenneth Royall (seen here), an Army Judge Advocate appointed by President Franklin Roosevelt to represent the WW II German saboteurs in the famous ex rel Quirin military commissions case, also exceeded his brief.

Against orders, and in the face of presidential opposition, Col. Royall took the case to the Supreme Court, challenging the legality of Roosevelt’s commissions.

Brig. Gen. Royall became Harry Truman’s Secretary of War.