Roger Fitch Esq • April 13, 2009
Our Man in Washington
Old wine in new bottles as DoJ rejigs the definition of “enemy combatant” ... Red Cross interviews with “high value detainees” leaked … Bush lawyers in sights of Spanish prosecutors … Obama under pressure to bury legal memos on torture … Contempt proceedings begun against prosecutors in Sen. Stevens corruption case
In a major extension of the Supreme Court’s Boumediene decision, District Court judge John Bates has ruled that some prisoners held at the US base at Bagram, Afghanistan – and potentially elsewhere – are entitled to habeas corpus.
The Obama administration claims Bagram prisoners have no legal rights whatever and has appealed.
Meanwhile, in another case in Judge Bates’ court, the Department of Justice has provided its definition of “enemy combatants,” without the name:
“The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.”
Obama’s lawyers embraced the Bush policy of militarising civilian crimes by non-state actors in order to justify their detention.
At the same time Bush’s claim that the President has inherent power to detain has been abandoned.
Instead, the DoJ relies on Congress’s Authorisation to Use Military Force, as “informed” by the law of war.
According to the Center for Constitutional Rights, it’s …
“old wine in new bottles. Whether in interpreting the laws of war or the AUMF, the government continues to confuse the right to use military force with the right to detain terror suspects indefinitely.”
* * *
As the new administration rolls out its legal positions in the Guantánamo cases, habeas petitioners are filing legal memoranda on a number of issues.
These have contested the new definition of the former enemy combatants; argued that the AUMF doesn’t support the detentions; and in one case, concentrated on the lack of Geneva convention rights at Guantánamo.
A new report by Amnesty has a good summary of the latest developments.
* * *
The “high value detainees”, brought to Guantánamo from secret CIA dungeons in 2006, are back in the news.
An ICRC report, resulting from the interviews the Red Cross conducted with the 14 Guantánamo HVDs, was provided in confidence to the CIA general counsel in 2007, and unequivocally accuses the US of torture and other mistreatment.
The report has now been leaked to the investigative journalist Mark Danner (pic), who has a long piece on it in The New York Review of Books.
Danner also has a follow-up report here.
The complicity of health professionals attracted particular attention in the ICRC report.
The Washington Post wondered, in the light of the ICRC report, how many other detainees had been tortured.
* * *
Spanish public prosecutors have Bush lawyers in their sights.
They may bring war crimes charges against six top Bush legal outlaws who operated from the Justice Department, the Pentagon and Vice President Cheney’s Office.
Justinian readers will recognise the names: Alberto Gonzales, David Addington, Douglas Feith, “Jim” Haynes, John Yoo and Jay Bybee.
Lawyer-blogger Scott Horton’s reaction is here.
The Wall Street Journal provided space for one of the suspects, Doug Feith (pic), to attack the Spanish.
One excellent source of evidence against the Torture Six will be the legal memoranda of the Office of Legal Counsel, and the Obama administration has promised to release more of these.
When Newsweek reported that three particularly damaging torture memos were about to be disclosed, all hell broke loose.
It seems Obama is being blackmailed by Republican Senators into delaying the release of the incriminating opinions.
They threaten to filibuster the confirmation of Dawn Johnsen at OLC and Harold Koh at State.
* * *
The Spanish may smell blood, but Obama’s lawyers continue the Bush Gang’s claims that John Yoo, Donald Rumsfeld et al are immune from liability for the torture of US detainees.
While Obama is taking the same unconscionable stance as Bush in the Padilla v Yoo and Rasul v Myers civil damages cases, the government shows no inclination to pursue criminal prosecutions against the torturers and renderers of the old regime.
The new AG, Eric Holder (pic), has implied that programs such as Bush’s torture interrogations reflect mere “policy differences” that shouldn’t be subject to criminal prosecutions.
* * *
The Uighurs, the Chinese ethnic group from “East Turkestan” that Judge Ricardo Urbina ordered released, have filed the first Supreme Court appeal by Guantánamo detainees since Boumediene.
This next big Supreme Court case has an all-East African name – Kiyemba v Obama.
Detainee Jamal Kiyemba, a former British resident now deported to Uganda, gave his name to the habeas as next friend.
The Uighurs are also asking that Defence Secretary Robert Gates be held in contempt and fined up to $500,000 a day for ignoring District Court orders for their release.
Scotusblog has the government response.
Meanwhile, the DC Court of Appeals continues to rule against the Uighurs, as in this latest decision.
* * *
”Orwellian” is overused these days, but no other word conveys the irony inherent in Washington’s latest lawyer scandal.
The corruption conviction of Senator Ted Stevens of Alaska (pic with pal) has been overturned because of prosecutorial misconduct by the Public Integrity lawyers at the Justice Department.
The judge, Emmet Sullivan, wondered how many Guantánamo cases had suffered from the same sort of DoJ misconduct.
No doubt he had the Batarfi case in mind.
Attorney General Holder won’t fire the Bush lawyers who caused the problem, but Judge Sullivan has started criminal contempt proceedings against the original trial team and their supervisor, and appointed a non-government lawyer to prosecute them.