Monday, July 26, 2010

From Roger Fitch and our friends down under at Justinian

Roger Fitch Esq • July 23, 2010

Rough treatment by the courts

“You have a right to a speedy trial – unless they need to torture you first” ... The media’s characterisation of waterboarding – it used to be called torture, now it’s nothing special … Americans stripped of their citizenship by transport safety bureaucrats … Our Man in Washington reports

imageLong-established legal principles are falling left and right, all in the name of … National Security.

In New York, in a shocking but not unexpected decision on the 6th amendment right to speedy trial, federal district judge Lewis Kaplan has ruled Ahmed Ghailani should stand trial in 2010 for the terrorism charges on which he was first indicted 12 years ago, in 1998.

This was so even though he has been in continuous government custody since 2004.

The New York Times has more.

Ghailani was indicted by the Clinton administration for the bombing of US embassies in Africa.

When he was apprehended, the Bush administration withheld him from the New York court for five years, two of them in the CIA torture program.

Judge Kaplan has already ruled, however, that any torture Ghailani suffered is irrelevant, and accepted the government’s dubious claims that it acted in good faith.

Despite the fact Ghailani was charged for acts that occurred outside a time and place of war, Judge Kaplan took it for granted that the government had a right to hold him in military detention as an “enemy combatant” and that a military commission (where Ghailani was also charged) would have been valid.

He accepted detention for interrogation alone, and the (previously unknown) right to lock people up as “intelligence assets”.

The Supreme Court has said that an “enemy combatant” – the ostensible basis for Ghailani’s CIA and Gitmo detention – is someone seized in the Afghanistan war for events related to 9/11, and also has said that such prisoners cannot be held indefinitely just for interrogation.

If one accepts the legality of the previous detention, however, speedy trial problems magically disappear.

Perversely, the prior detention is legitimated for purposes of tolling speedy trial requirements, while any torture that occurred during that detention is considered irrelevant to the trial now set to begin.

Emptywheel summed up the decision:

“You have a right to speedy trial – unless they need to torture you first.”

So far the only conviction of an American (or anyone else) under the US Torture Act has been the US-born son of the African dictator Charles Taylor, a conviction just upheld by the 11th Circuit.

There’s also a Torture Victim Protection Act, but it’s been roughly treated by US courts.

One such court – prudently left under Republican control by Mr Obama – is the DC Circuit, which just did its bit for national security by suggesting that “some evidence” should be the standard for Guantánamo detentions rather than the onerous “preponderance of evidence” adopted by the DC district courts.

National security demands no less.

* * *

Peripheral Guantánamo issues are still playing out in the courts.

The Center for Constitutional Rights will take the snooping-on-lawyers case Wilner v NSA to the Supreme Court.

The cert petition is here.

imageMother Jones, meanwhile, has more on the case of the Guantánamo lawyers who snooped on the CIA, and the trouble it brought them.

Mother Jones also has a report on the professional strife former CIA and Guantánamo psychologists are in.

These include the now-dean of a college psychology department, Larry James, the notorious CIA contractor James Mitchell (pic), and a third psychologist.

* * *

The House Judiciary Committee testimony of torture lawyer (now federal appeals judge) Jay Bybee, has just been released, and it confirms that some of the gruesome interrogation techniques used by the Bush Gang went beyond what DoJ authorised.

Jason Leopold has more.

Emptywheel noticed Bybee may have inadvertently confirmed that CIA detainee Abu Zubaydah was subjected to a torture experiment in sleep deprivation before the opinion justifying the procedure was requested.

As for Abu Zubaydah’s 83 episodes of waterboarding, was it really torture?

That depends on who’s drowning whom. A new Harvard study on the US media’s characterisation of water torture found that:

“From the early 1930s until the modern story broke in 2004, the newspapers that covered waterboarding almost uniformly called the practice torture or implied it was torture: The New York Times characterized it thus in 81.5 percent … of articles on the subject and The Los Angeles Times did so in 96.3 percent of articles… By contrast, from 20022008, the studied newspapers almost never referred to waterboarding as torture. The New York Times called waterboarding torture or implied it was torture in just 2 of 143 articles (1.4 percent)... In addition, the newspapers are much more likely to call waterboarding torture if a country other than the United States is the perpetrator.”

Emptywheel comments.

* * *

imageAt least Britain’s new conservative PM David Cameron (snap) is willing to do what a “liberal” US president won’t – investigate the previous government’s involvement in torture.

The Al Rawi civil torture case in Britain continues, however, and is producing bombshells such as MI6’s advice for dealing with detainees held by lawless intelligence services such as the CIA.

British disclosures already show involvement with the US in torture and rendition missions, e.g. Tony Blair personally intervened to send UK citizens and residents to Guantánamo rather than bring them home for uncertain prosecution.

* * *

Mr Obama recently had his first loss in an appeal against denial of habeas in a Guantánamo case.

Belkacem Bensayeh, the last man detained in the Boumediene case, will get a new habeas hearing, thanks to the DC Court of Appeals.

Scott Horton comments.

In Bensayeh the Court of Appeals had to explain to the Obama lawyers that possessing a false passport doesn’t make someone a member of al-Qaeda.

Perhaps we shouldn’t blame people for wanting false passports, when the real ones don’t work.

A number of Americans and permanent US residents are presently stranded overseas, unable to return to the US (or even fly over it) because the dreaded No-Fly List now trumps a passport.

It seems the Transport Security Administration and airlines flying to the US are colluding to effectively strip Americans of their citizenship.

The Washington Post reports that converting to Islam, visiting Yemen or studying Arabic will do the trick, not to mention the careless adoption of a Muslim name.

Being dusky doesn’t help.

CAIR (the Council on American Islamic Relations) has issued a travel advisory warning of “forced exile” for US Muslims who go abroad.

The ACLU has filed a lawsuit to stop the practice.

Jurist has more.

Thursday, July 15, 2010

Get under that bus.....

Congressman: Questions on CIA Interrogations


Filed at 12:51 p.m. ET

WASHINGTON (AP) -- The House Judiciary Committee chairman said Thursday that an interview with a former Justice Department official shows the department did not authorize some of the harsh interrogation techniques reportedly used by the CIA.

Rep. John Conyers of Michigan made the comments after the committee interviewed former assistant attorney general Jay Bybee, who is now a federal appeals court judge. During the Bush administration, Bybee's Justice Department office wrote legal opinions governing the interrogation techniques used on terrorism detainees.

According to Conyers, Bybee's statements are highly relevant to an ongoing criminal investigation of alleged detainee abuse during the Bush administration.

The interview transcript shows that committee members asked Bybee whether such reported practices as dousing detainees with water and repetitive noise or loud music to keep prisoners awake were done without specific authorization by the Office of Legal Counsel, which Bybee headed.

Bush administration officials obtained legal advice on the CIA interrogations by bringing lists of planned techniques, or assumptions, to Bybee's office for analysis.

''So if these things occurred, dousing with cold water, subjecting to loud music to keep people from falling asleep, if that occurred, that means they were done without specific OLC authorization?'' Bybee was asked.

''That's right,'' Bybee replied.

''So the answer is 'yes?' '' a questioner asked.

''Those techniques were not authorized,'' Bybee replied.

Bybee subsequently modified his statements.

Under questioning about some of the reported techniques, Bybee said that ''the assumptions on which we were given this were not authorized specifically'' by OLC. The transcript shows that Bybee later proposed a change in his testimony to say that ''if the assumptions that we were given changed, they were not authorized specifically'' by OLC lawyers.

Thursday, July 8, 2010

Reflections on the 4th of July by Roger Fitch

Roger Fitch Esq • July 8, 2010

The Fourth of July

Obama administration gets its first Guantánamo conviction … Osama’s cook and bottle washer pleads guilty to “material support” ... David Hicks also pleaded guilty to this concocted “war crime” ... Our Man in Washington reports

imageOn July 4, we were reminded of the US Declaration of Independence, which speaks of an oppressive British monarch who “affected to render the Military independent of and superior to the Civil Power”, imposing “a jurisdiction foreign to our constitution and unacknowledged by our laws; giving his assent to acts of pretended legislation”; and “transporting us beyond Seas to be tried for pretended offences”.

In the 2006 Hamdan decision, the Supreme Court reiterated that “conspiracy” was not a valid crime under the Geneva Conventions or the laws of war, whatever the Bush administration might claim.

Congress proceeded to make it a crime anyway, and it was used (unsuccessfully) against Hamdan himself.

In 2009, top Obama administration lawyers from the departments of Justice and Defence admitted to Congress that “material support for terrorism”, invented by Congress in the Military Commissions Act 2006, was not a valid war crime and asked that it be dropped from the MCA 2009.

It wasn’t.

Neither inconvenient fact, however, prevented the US accepting (on July 7) a guilty plea from Osama bin Ladin’s cook and bookkeeper, Ibrahim Al Qosi, for material support and conspiracy.

Both “crimes” are currently before the Court of Military Commissions Review in the cases of Hamdan and Al-Bahlul (bin Ladin’s driver, and publicity man, respectively), and it is entirely possible they will be struck out on appeal.

Al Qosi becomes the second person, after David Hicks, to plead guilty to a non-existent, retrospectively applied, military commission offence.

His Sudanese and American lawyers may feel satisfied that they have brought some sort of resolution to their client’s nightmare, but every plea, and every conviction, is a knife in the US Constitution, the Geneva Conventions and the rule of law.

A military commission staged by Col Gaddafi would have had as much validity.

See previous Fitch on Material support