Monday, October 5, 2009
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.
Legal Times has a report on the Bill to add new judges to the circuit courts.
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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.
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.
* * *
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.
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.
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.
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.
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.