Saturday, December 24, 2011


The Republican dream

Congressional fat cats ... Corporate crime and financial defalcation ... Constitutional violations ... Gridlock on judicial and ambassadorial nominations ... Roger Fitch surveys the Washington landscape 
By co-incidence, Citizens for Responsibility and Ethics in Washington has a new 2011 "Most Corrupt" list for Congress and a "Funds for Favours" report.
For legislators still unsure how to vote, there are plenty of lobbyists to assist and reward them.   
In fact, 5,400 former Congressional staffers have taken the revolving door to become lobbyists since 2001.
*   *   *
Outside Congress, it's still welfare for the truly rich.
Wall Street bankers, having already received, by some estimates, $29.5 trillion in government benefits, are now as well-looked after by Democrats as by Republicans.
Take Obama's Securities and Exchange Commission.
The SEC is racing around the courts burying evidence and covering up crimes with consent decrees lacking any admissions of guilt by the recidivist banks.
The deals being offered smell so bad even federal judges are resisting the settlements.
We've seen nothing like it since 2006 (see my post), when Bush's Justice Department fixer Robert McCallum -  later ambassador to Australia - reduced the penalty in the Big Tobacco litigation from $130 billion to $10 billion.
Now, Manhattan Federal Court Judge Jed Rakoff has rejected the SEC's sweetheart settlement with Citigroup, giving heart to investors everywhere who have suffered from bank fraud during the Global Financial Crisis.
There is more here and here.
*   *   *
Heedless of all this corporate crime and financial defalcation, Congress is busy stripping law courts of jurisdiction over citizens and others the government calls "enemy combatants" due to their "terrorism", although terrorism, like banking, is hardly a military matter. 
It's hard to count the ways the National Defense Authorization Act violates the Constitution, but one might start with Article III, Section 2:
"The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."
That might permit a civilian trial at Guantánamo, except for the Sixth Amendment to the Constitution
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed..." 
Anyway, military jurisdiction over civilians isn't a given, according to law prof Steve Vladeck.
This latest Pentagon pre-emption of civilian justice is opposed - by the Pentagon, the Director of National Intelligence, the CIA, the FBI and the Justice Department.
Japanese-Americans don't think much of it, either, but nothing seems likely to stop Congressshort of a presidential veto. 
Senator Ayotte: more tortureOne senator wants to bring back torture.
This badly-timed proposal came as the Senate Intelligence Committee was wrapping up its highly critical report on the CIA torture program.
Tea-Partiers are beginning to wake-up and former Bush officials are also opposed to the NDAA provisions. 
*   *   *
In Washington, the habeas hearings of Guantánamo prisoners, first required by appeals courts in 2003 and mandated by the Supreme Court in 2004 and 2008, are all but dead
The latest scorecard doesn't include the unsuccessful case of Fayiz Al-Kandari. He's the last of the Rasul petitioners to be considered by the DC Circuit.
Al-Kandari and Fawzi al-Odah  are the only two (of 16) still held from the landmark Rasul–Al Odah case (2004), the case that included the Australians Mamdouh Habib and David Hicks. 
Al-Kandari was an unpublished opinion by a CA panel composed of Brett Kavanaugh, Laurence Silberman and Douglas Ginsburg. 
It was no surprise, with an all-Republican panel and no oral argument.
Professor Vladeck has published a law review article on the four judges actively undermining the Supreme Court's Boumediene decision.
These include, in addition to Kavanaugh and Silberman, Judges Janice Rogers Brown and A. Raymond Randolph. 
*   *   *
Justia's John Dean thinks the Republican dream is post-2012 control of the Supreme Court.
In the meantime, Republicans are content to use parliamentary tactics - eg, the threat of filibuster - to prevent appointments to courts of appeal.
DuMont: appointment obstructedRepublicans have reason to delay: Obama's appointments have already caused the once reliably right-wing 4th circuit to "turn left".  
Any reason will do to block an appointment. One of Obama's nominees to the Federal Circuit, Edward DuMont, has withdrawn after months of mean-spirited Republican obstruction of his appointment. 
His offence? He's openly gay, enough for some minority members of the Judiciary Committee to indefinitely block his appointment.
Another (successful) Federal Circuit nominee didn't have an easy time of it.
It took two-and-a-half years for Evan Wallach to get on the court.
Luckily, Senate Republicans didn't know about Wallach's devastating study of water torture (see my post of 2006).
In another high profile appointment, that of Caitlin Halligan to the DC Circuit, Senate Republicans have blocked Obama's nominee.   
Why? Because as New York's solicitor-general, she argued gun manufacturers were a public nuisance
The seat has been vacant since Chief Justice John Roberts was elevated to the Supreme Court in 2005.
Halligan: shot down over gun nuisance suitIt's not just judicial appointments. Sen. Jim DeMint (R-SC) has blocked the confirmation of an Obama appointee who received a recess appointment as ambassador to El Salvador.
The aptly-named DeMint objected to the ambassador's boyfriendof 20 years ago.
In the past, Obama had several opportunities to make recess appointments - those that the constitution provides can be made without Senate assent, during a Congressional recess.
Now the Republicans stay in continuous session to prevent such appointments.
There's a way out, if Obama has the cojónes to take it, but these he seems to have lost en route to the White House. 

Saturday, November 26, 2011

From Roger Fitch and our friends down under...

Land of the brave
Monday, November 21, 2011
Justinian in Roger Fitch Esq
Former general counsel of the CIA under investigation over drone attack "murder" remark ... War crimes don't need a war (apparently) ... Novel offences likely to remain on the books ... Ideological Republican circuit judges flout the Supreme Court ... Our Man in Washington reports  
"Aside from the humanitarian aspects, it is well known that, under excruciating torture, a prisoner will admit almost any suggested crime. Such confessions are, of course, not admissible in trials in civilized nations... Some of our leaders have found that it is easy to forgo human rights for those who are considered to be subhuman, or 'enemy combatants'." 
  Jimmy Carter, the last American president moderately attached to human rights

It's all go in Washington.
In Congress, Democrats doubtful about Democracy have joined Republicans rejecting the Republic and support language in the National Defence Authorization Bill that requires indefinite military detention.
Anyone claimed to have some connection with the Taliban, Al-Qaida or "associated forces" is at risk, even a citizen living in the US.
Over at Langley, the CIA is investigating its former general counsel John Rizzo for his remarks in a Newsweek article. 
In my March 21 post I reported how Mr Rizzo openly talked about the "murder" being carried out by CIA drone attacks. Now he's in trouble, not for running a murder program, but talking about it. 
Out on the 2012 presidential hustings, Republican aspirants naturally support assassinations, but several nostalgically cling to torture.
Republicans already in office around the country are busy passing new voting laws making it harder for five million suspected Democrats to vote in 2012 - that's more than the margin in two of the last three presidential elections. 
*   *   *
Rizzo: in strife for talking about drone "murder program"Torture and terrorists are also in the news at Guantánamo, where an arraignment has just been held in the first death penalty military commission brought by the US. 
Incredibly, the Obama administration chose a severely tortured prisoner for the guinea pig.
Now portrayed as the mastermind of the bombing of the USS Cole in Yemen in 2000, Abd al-Rahim al-Nashiri was merely an "unindicted co-conspirator" when two other USS Cole bombers were indicted in New York in May 2003. 
Although Nashiri was in US custody in 2003, he wasn't produced in New York as the CIA was busy torturing him in Thailand and/or Poland, perhaps to learn the whereabouts of the others - and get a confession. 
Polish prosecutors began an investigation of Nashiri's detention in Poland and accorded him "victim" status, but someone has nobbled the case. 
Allegedly, there's a document signed by Poland's former prime minister regulating the CIA prison and describing what to do "if a dead body of one of the persons held there should appear". 
Remote telecasts of the Guantánamo proceedings were allowed, with a 40-second delay to shield "sensitive information."
al-Nashiri: first death penalty commission adjournedThis might include embarrassing or criminal activity, such as the use of private contractors like the Boeing subsidiary Jeppesen Dataplan to abduct and render prisoners, and outright torture by the CIA, its contractors, and intelligence agencies in cooperating countries.
Nashiri is charged with various offences, none of them nice, but all save one unknown to the law of war. 
As I reported on May 21, these "war crimes" didn't even occur during a war, and the charges describe only one actual war crime, perfidy: 
"Abd al Rahim Hussayn Muhammad al Nashiri, an alien unprivileged enemy belligerent subject to trial by military commission, did, in or around Aden, Yemen, on or about 12 October 2000, in the context of and associated with hostilities, in violation of the law of war, to wit: by committing an act of perfidy, said act of perfidy being two men dressing in civilian clothing, waving at the crewmembers onboard USS COLE (DDG 67), and operating and detonating an explosives-laden civilian boat alongside a United States naval vessel, intentionally and unlawfully kill ... 17 persons." 
It's hard to see how Nashiri can be a belligerent, unprivileged or otherwise; there were no hostilities in Yemen in 2000 that would make his deeds a violation of the law of war. And perfidy, though a war crime, requires more than waving.
Nashiri's case has been adjourned, with the defendant sagely selecting a trial date after the US elections.
*   *   *
Judge Brown: partisan Republican ideologueShould he somehow be acquitted, Nashiri could still be held forever as an "enemy combatant".
That will be far easier now, thanks to a new opinion by Janice Rogers Brown that aggressively flouts the Supreme Court and Boumediene
Judge Brown is a partisan Republican ideologue whose appointment to the DC Circuit was battled by Democrats for two years. 
Her latest decision in the Latif case requires that district court judges hearing Guantánamo habeas cases always accord a presumption of regularity to government intelligence reports.
The decision worried Lawfare and the Times, while Emptywheel was alarmed at Latif's implications for Congressional military detentions.
Not satisfied with ignoring the Boumediene case in every Guantánamo habeas appeal, DC Circuit panels with right-wing majorities are cancelling oral arguments altogether.
No need to confuse them with facts and arguments. 
It demonstrates the surprising capacity of lower courts to circumvent and subvert Supreme Court precedent
*   *   *
The military commission of Salim Hamdan is on appeal in the DC Circuit, where Hamdan - now back in Yemen -is appealing his conviction for "material Support", recently upheld by the Court of Military Commission Review (see my June post). 
Mr Obama hasn't succeeded in filling the three vacancies on the DC Circuit, so there's a good chance Hamdan's  appeal will be assigned to Republican activists.
They're still a majority on the circuit and strongly attached to presidential power during real or rhetorical (terror) wars.
Unfortunately, the other CMCR decision upholding a novel war crime, that of Ali Hamza Al-Bahlul for "conspiracy" (see my October post), could escape judicial scrutiny because Al Bahlul is refusing to authorise an appeal.
That would leave conspiracy on the books as a war crime even though a plurality of the Supreme Court specifically rejected it in Hamdan.

Wednesday, October 19, 2011

Comforting the Comfortable.....

Comforting the comfortable
Tuesday, October 18, 2011
Justinian in Alien Tort Statute, Citizens United, Donald Rumsfeld, Rendition, Roger Fitch Esq, Torture, US Supreme Court

Analysing the US Supremes most recent term - plenty of goodies for big business, nothing for plaintiff lawyers ... Alien Tort Statute up for a workout ... Torture cases batted around the circuit courts ... Rendition victims lose final appeal ... Our Man in Washington reports

The US Supreme Court sits again this month, but the 2010 term is still being analysed here and here.

Scotusblog has the term's statistics.

By general consensus, big business and conservatives scored well.

Some say the court is only interested in comforting the comfortable.

The court's hostility to litigation and plaintiffs' lawyers led notably to Wal-Mart v Dukes, a class-action killer and the most pro-business decision since Citizens United invented corporate free speech.

More here and here.

The decision in AT&T Mobility v Conception, an arbitration clause case, will have a devastating effect on consumer class litigation. Emptywheel has more.

A leading law dean, Erwin Chemerinsky at the University of California, and Dahlia Lithwick have more on the Roberts Court junta.

While some writers believe the Supreme Court killed class actions, others think the cause is not yet lost.

* * *

The Citizens United wash-up continues. A 4th circuit district court applying Citizens has compounded the corporate-cash election-buying problem, see here and here, although a 9th circuit decision has given hope to election reform advocates.

Meanwhile, the cash corruption of legislators, firmly cemented by Citizens, has spread to elected judges.

* * *

In the new supreme court term, the Alien Tort Statute, (aka the Alien Tort Claims Act, ATCA), is at the top of the court's corporate to-do list.

The ATS is foundational American law (1789), and it's increasingly being applied against US oil companies, corporate mercenaries and other adventurers and brigands abroad.

Corporations like being persons for the purpose of political contributions, but subjecting them to tort liability under the ATS is another matter.

Now there's to be a major Supreme Court review of a lower court decision exempting corporations from the ATS.

The 2nd circuit case, Kiobel v Royal Dutch Petroleum, alleges human rights violations by Shell Oil in Nigeria. International human rights organisations including the US-based Center for Constitutional Rights have filed an amicus brief.

Senator Coburn: opposing judicial nominees who are versed in international lawExxon wasn't so lucky: the DC circuit ruled that the company had a case to answer for human rights abuses in Indonesia.

The 7th circuit has also held the ATS applies to corporations, while the conservative 11th circuit ruled for the defendants in a Bolivian-based ATSaction.

Now it's a fight to the death for corporations that smell victory in a corporate-friendly Supreme Court.

The defence triumphs could be a result of the ignorance of international law regularly displayed by US judges. One demented US senator, Tom Coburn (R-Okla.) wants to keep it that way.

* * *

Other DC appeals panels have recently decided that the ATS doesn't apply to non-state actors, or even (in Ali v Rumsfeld) official torture by the United States.

Rumsfeld: there is no right not to be torturedThe suit against the former defence secretary is one of five such suits against US officials for torture and unlawful detention.

Leading the pack is the case of the US citizen famously abused on US soil, José Padilla, who has appealed the dismissal of his civil suit against Rumsfeld.

Padilla's brief in the 4th circuit is here.

His chances aren't good, judging from the circuit's new party-line decisions denying torture claims of Iraqis against US contractors.

In Padilla's case, Rumsfeld essentially claims there's no right not to be tortured.

Rummy may be correct: a Republican 11th circuit panel just confirmed Padilla's civil conviction with a finding that the outrageous-government-conduct defencedoesn't apply to conduct unrelated to the charged crime.

The 7th circuit, meanwhile, has allowed a torture suit against Rumsfeld by civilian contractors to go forward. More here.

In the DC circuit, a visiting district court judge ruled against the government in the anonymous Doe v Rumsfeld.

* * *

In May, the victims of rendition flights arranged by the Boeing subsidiary Jeppesen Dataplan lost their final appeal in a civil suit for torture when the supreme court refused to hear the case (see June post).

Now, court records from a New York state case concluded in May - only now discovered - have exposed new details about the Bush administration policy of rendition and torture.

In tiny Hudson (population 6,713) two corporate players in the rendition business have been litigating a contract dispute.

Perhaps through incompetence the Justice Department failed to intervene in the case, which dates from 2007 and arose from a falling out between subcontractors in the Jeppesen-run renditions.

If the US had claimed "state secrets", hundreds of documentary exhibits would never have come to light.

Thanks to the new revelations, we now know more about the US firms who profited from rendition.

Ironically, the documents contain pro forma contractor promises to abide by specified federal regulations.

Not surprisingly, federal laws against assault, abduction, false imprisonment and torture aren't mentioned, but it's nice to know the contractors were mindful of minorities and those with disabilities, and that no convict labour was used.

Still, rectal-doping the abducted passengers (charmingly referred to by the contractors as "invitees") seems at odds with a "drug-free workplace".

State Department passes ("letters of convenience") were also supplied - obviously forged since the signatures didn't match.

More here and here.

* * *

Ali Hamza Al Bahlul: "conspiracy" back in vogue as a war crimeThe Pentagon's rubber-stamp Court of Military Commission Review has upheld the Guantánamo "sentence" of Ali Hamza Al Bahlul, convicted of imaginary war crimes in a military commission.

The Miami Herald has more.

It's the counterpart of the CMCR's ruling in the case of Salim Hamdan (see my June post), argued at the same time (January 2010) and only decided in June this year.

Like Hamdan, the Al-Bahlul decision relied on strategic recusals and new appointments after the initial hearing - i.e. court-packing - to attain the Pentagon's desired result.

Hamdan's en banc contained one judge who sat on the original panel, but in Al Bahlul every judge from the original panel withdrew or retired.

In both cases, new or recycled Pentagon appointees assured a Pentagon win.

In Al Bahlul's case, the freshly-minted Hamdan precedent was naturally cited, but the CMCR went further and determined that "conspiracy" - a charge that a plurality of the Supreme Court specifically rejected as a war crime in Hamdan's case - was a valid crime.

There's much worse in the 138-page ruling.

Kevin Jon Heller has more at Opinio Juris.

Wednesday, July 6, 2011

From Roger Fitch and our Friends Down Under

The post-legal society

Wednesday, June 29, 2011
Justinian in Guantanamo, Habeas, Roger Fitch Esq, War crimes, material support

Reinventing the Constitution ... New war crime propped up by discredited 1818 case ... Pentagon stacks military commission review court ... Rogue circuit court circumvents habeas for Guantanameros ... CIA homicides investigated by grand jury ... Our Man in Washington reports

George Bush's quest for a stripped-down, bare-bones constitution is progressing nicely under his nimble successor, Barack Obama.

Evidently, the powers-that-be decided a smooth Democrat - a "constitutional law professor" - was best-equipped to carry out a project begun by clumsy Republicans and stalled by cautious courts.

The results so far have been impressive.

The 1st Amendment's guarantee of speech has been ingeniously reinterpreted, loosing rivers of corporate cash in public elections.

The 2nd (guns) has been turned 180 degrees and the 4th (search and seizure) is on the way out. The 8th (excessive bail, cruel and inhuman punishment) is pretty much a dead letter.

Demolition of the 5th (due process) and 6th (speedy trials, impartial juries, right to confront witnesses) will be difficult and take longer, but hope springs eternal in America's governing class.

In fact, we already live in a post-legal society, according to a well-known internet scribe.

To prove it, the Republican House just passed a Bill requiring military detention for "terrorism suspects" who aren't citizens, and Senate Democrats went along with it.

Without civilian courts, there's no habeas.

Is this a great country, or what?

* * *

The DC Court of Appeals seems to have already suspended habeas, at least for Guantanameros (see below), and the scholar Obama, ignoring legal advice, has pre-empted Congress's power to declare war by redefining "hostilities" (reaction here and here).

Yet, to use the buzzword du jour, much still needs "overhauling" in the US constitution.

An obvious example is the Article I, section 8 (10) power of Congress to "define and punish ... offenses against the law of nations," including the law of war.

This isn't good enough. Congress wants to design new war crimes, not define existing ones. As noted in my last post, the shiny new war crime of "material support for terrorism" has been pending before the Court of Military Commission Review.

Mr Obama abandoned the Bush Gang claims, that the newly-minted MST embodied Civil War concepts of "jayhawking" and "banditti".

Indeed, Obama's lawyers conceded no such war crime exists, but soldiered on when Congress re-enacted it.

Eventually, with three Gitmo guilty pleas for MST, government lawyers fronted the CMCR with a brand new argument: "terrorist supporters" are actually guilty of "aiding the enemy" - a real war crime - and cited the Arbuthnot case.

General Jackson: hanged an Englishman for aiding blacks and IndiansA new law review article is scathing in its criticism of the government's reliance on this discredited 1818 case, involving acts of Andrew Jackson now widely regarded as war crimes.

This ad hoc proceeding was held on US-invaded territory, and convicted Britons - who owed no duty to the United States - of "aiding" the "enemy", i.e., blacks and Seminole Indians living in Spanish Florida.

One of the men was hanged by General Jackson despite the jury's sentence of a year's hard labour.

It's the single case the government could find to back a "material support" analogy.

No problem. On June 24, the Pentagon's rubberstamp CMCR seized on Arbuthnot and all the previously discarded arguments as well, in upholding Salim Hamdan's conviction.

In its opinion, the CMCR ignored the modern history of the law of war and its reception in customary US law, while finding new Congressional sources of power in the US constitution.

Opinio Juris dissects the decision here.

A little history is required here.

Hamdan's appeal was first heard by three judges in January 2010, but no decision was announced. Instead, one of the three retired and another recused when an en banc rehearing was announced (four other judges also recused).

The Pentagon then appointed six new judges, one of whom recused.

The resulting handpicked panel of seven consisted of one judge from the January hearing, another panel judge and five new judges.

It was this panel which, sua sponte, sought briefing on "aiding the enemy."

It looks and smells like a Pentagon do-over.

* * *

Going boldly where the Supreme Court is too timid to go, the DC Circuit continues its degradation of evidentiary standards in order to uphold Guantánamo detentions.

David Remes: from Covington partner to Gitmo advocateThe circuit seems bent on preventing any Gitmo habeas from succeeding.

Lawfare has the current habeas scorecard, as well as Gitmo lawyer David Remes's assessment of the DC Circuit's continuing stonewall of Boumediene.

Lawfare's Ben Wittes reported the latest creative denials of Guantánamo habeas by the rogue DC Circuit, here and here.

The conservative Wittes was startled by the court's judicial activism, with "guilt by guesthouse" now entrenched in circuit law.

It's likely to stay that way, as the Supreme Court refuses to touch the toxic habeas law thrown up by the current terror-hysteria.

* * *

Time reports that a grand jury in Virginia is investigating CIA homicides including the torture-death of several Iraqis and an Afghan.

When Obama's lawyers let the statutes of limitation expire for the previous administration's obstructions of justice and Torture Act violations, Bush Gang members seemed poised to escape punishment.

There's no statute of limitation, however, for torture (or war crimes) resulting in death.

The CIA Inspector General is meanwhile investigating the abduction of Khaled El-Masri by the CIA.

Khaled El-Masri: abducted by the CIAThese could be feints by the US following the European Parliament's resolution on American human rights violations and the need for the US to investigate them.

Past investigations by the US have been suspicious. The Virginia grand jury is under the guidance of the Bush regime's special prosecutor, John Durham, who ran out limitations and has so far declined to prosecute any of the crimes uncovered.

* * *

The Supreme Court declined to hear Jeppesen Dataplan.

There will now be no consequences for the Boeing subsidiary that carried out gruesome torture renditions for the CIA and Pentagon.

Boeing effectively obtained impunity for organising and providing "contract services" in which people were assaulted, abducted, falsely imprisoned and flown to torture by foreign governments - or by the CIA.

Boeing won because an evenly divided Supreme Court, unable to reverse the decision, declined to grant certiorari - all according to plan.

As I noted last year (August 16), Obama shrewdly placed Elena Kagan in the Solicitor General position before appointing her to the court, in order to force her recusal, and reduce "liberal" votes, on pending "national security" appeals.

Kagan has recused on cue, wildly enhancing executive powers for Mr Obama, and unfortunately, his successors, too.

The government now has carte blanche to use "state secrets" to conceal its crimes.

Monday, June 20, 2011

I want to speak to you about your lost son in Guantanamo....

An American Lawyer's Letter to the Algerians
by M. Saadoune
She addresses herself to the "great Algerian People," to whom she sends her best wishes before speaking to them about "their lost son in Guantanamo," Saeed Backhouch (in Algerian transcription, that would be Saïd Bakhouche).
She is H. Candace Gorman, and she is writing about her client Saïd Bakhouche, imprisoned at Guantanamo, and who would have been able to get out if the Algerian authorities had consented to give out a simple piece of information: the date that his passport was issued.
In a letter sent on the 9th of June, the lawyer writes to us about Said, a young man who left his country in search of "opportunities," that he had not found at home, and who ended up going to seek education in a school of the Tabligh movement in Pakistan, where people were trained to do religious proselytizing. The trip to Pakistan came at an unfortunate moment: in 2001, at the moment that terrorists attacked the twin towers in New York. My government, the lawyer explains, was rightly angry. But in its search for those responsible, it decided to "round up Arabs without distinction." The Pakistani regime, under the direction of Pervez Musharraf, made a specialty of selling Arabs to the Americans. For Said, things went badly. Only two weeks after his arrival at the school, he was the object of a police raid: Arabs arrested and turned over to the Americans, and non-Arabs released.
An additional complication: the Americans suspected one of the Arab residents of being Abou Zoubeyda, one of the chiefs of Al-Qaida. Incorrectly. The man they had arrested and whom they had submitted to "terrible tortures" for two years was actually not Abou Zoubeyda. And Said, who didn't know anyone, found himself cataloged as a member of Al-Qaida because "my government thought that someone living in the same hostel as Abou Zoubeyda must also be a member of Al Qaida."
The lawyer has undertaken to demonstrate that her client was "neither a terrorist nor a sympathizer." She has asked the aid of the Algerian authorities to get a simple piece of information: the date on which Said obtained his passport. Knowing this date is important for the lawyer; she believes that it is an obligation on the part of a "responsible government" to aid its citizens in such conditions.
The Terrible Truth
With her telephone calls being ignored by the Algerian Embassy in the US, she ended up meeting an official and explaining what she wanted. The official advised her to make a written request, which she did. Nothing. More telephone calls ignored. Finally she sent an email to the official to explain how important the information was to her client. "When I received the response, I understood the terrible truth: the Algerian government would do nothing to aid its citizen detained at Guantanamo. Not even to respond to this simple request."
And at the same moment that she understood finally that the Algerian government would not give the information about the date of issue of the passport, the US government once again changed the reasons for its detention of Said. For the first time, during the summer of 2010, the US accused Said of being an Al-Qaida figure since the 90s, under the name Usama Al-Jazairi. The lawyer was able to demonstrate that the person who used the name Usama Al-Jazairi could not be her client but she is still unable to "show something even more important to the judge: that Said could not have been in Afghanistan in the 90s because he was in Algeria." She could not do that because "Said's own government refuses to give him the simplest help to prove it."

Thursday, May 19, 2011

Why did they remove his eye???

Why Did US Medical Personnel Remove High-Value Detainee Abu Zubaydah's Eye?

by: Jason Leopold, Truthout

Shortly after he was captured in March 2002 at a safe house in Faisalabad, Pakistan, following an early morning raid jointly conducted by the CIA, FBI, Pakistani police and Inter-Services Intelligence (ISI), Abu Zubaydah woke up at a black site prison in Thailand and discovered that his left eye had been surgically removed.

Zubaydah, who is wearing an eye patch in a photograph included in his Guantanamo threat assessment file released by WikiLeaks last month, apparently never consented to the medical procedure and to this day has no idea why it was done, according to one of Zubaydah's attorneys.

"I can tell you that Abu Zubaydah has no explanation for the loss of his eye," said Brent Mickum, who has represented Zubaydah in his since 2007. "He continually wants me to make inquiries to try and determine the circumstances for which he lost his eye, but no one has been forthcoming."

Zubaydah, the first high-value detainee captured in the "war on terror" whom the Bush administration had falsely claimed [4] helped plan the 9/11 attacks and was the "No. 3" person in al-Qaeda, was shot in the leg, groin and stomach with an AK-47 during the March 28, 2002, raid. He allegedly attempted to evade capture by trying to jump from the rooftop of his safe house to the roof of a neighboring house. But the wounds he sustained did not include injuries to his eyes, face or head, according to intelligence officials and photographs of Zubaydah taken as he lay unconscious in a pool of blood, teetering on the brink of death, following the raid.

Retired CIA officer John Kiriakou [5], who was the head of counterterrorism operations in Pakistan and led the team involved in Zubaydah's capture, told Truthout recently that Zubaydah "had both eyes" when the suspected terrorist was escorted from a Pakistani hospital to a Gulf Stream jet a day or so after the raid where a trauma surgeon from Johns Hopkins University the CIA tapped to perform surgery on the suspected terrorist was waiting.

Truthout sustains itself through tax-deductible donations from our readers. Please make a contribution today to keep truly independent journalism strong! [6]

So, what happened?

A US counterterrorism official, responding to a query from Truthout, said, "Zubaydah had a preexisting eye condition when he was captured" and "American medical personnel treated the condition, [but] he ultimately lost the eye."

The revelation stands as the first piece of new medical information related to Zubaydah's case to surface in years.

But Mickum doesn't believe the government is being truthful.

"It is patently false to state Zubaydah lost his eye due to a preexisting condition and that is belied by the evidence that I have from [Zubaydah], which I can't discuss due to the government's protective order," said Mickum. "My client had two good eyes before he was seized. I'm aware of no information from my client, the government or any other source that he had a 'preexisting eye condition.'"

The counterterrorism official did not respond to follow-up questions about what Zubaydah's pre-existing condition was, when the surgery to remove his eye took place, who performed it and where it was done, whether officials at the CIA signed off on the procedure, whether measures were taken to try and save Zubaydah's eye and whether the CIA or any other intelligence official told Zubaydah why his eye was being removed.

Evisceration or Enucleation?

Dr. Jonathan Macy, who runs the Macy Eye Center [7] in Los Angeles and is an associate clinical professor of ophthalmology at UCLA and the University of Southern California, said the "indications for removal of an eye include trauma, infection, pain, tumor and sympathetic ophthalmia [8]," where a piercing injury to one eye results in inflammation of the uninjured eye.

"If the eye is removed primarily at the time of trauma, the indication is a blind eye that cannot be put back together," Macy said. "An alternative scenario would involve primary repair of the ruptured globe and the subsequent development of infection or pain in a blind eye."

Macy added that "removal of eyes is done with either evisceration or enucleation."

"Evisceration is usually the preferred procedure," Macy said. "With evisceration, the contents of the globe are removed, but the outer wall, or sclera of the eye in retained. A silicone ball implant is inserted within the sclera to create volume. The volume within the orbit allows proper fitting of a prosthesis. When the whole globe must be removed, that is an enucleation."

But Macy said it is unknown which procedure Zubaydah underwent because the counterterrorism official would only say that "he ultimately lost the eye."

A 1998 passport picture [9] of Zubaydah, which for years was the only photograph available, shows him wearing a pair of glasses and what appears to be a shadow or scar over his left eye, possibly the result of a shrapnel wound he suffered a decade prior to his capture.

Macy said in that photograph Zubaydah's "left orbit may have already contained a prosthesis," but Macy did not take a position as to whether that was the case.

"When one eye is normal and the other eye has a prosthesis, they rarely appear symmetrical," he said. Zubaydah's "eyes look slightly different from one another, but not to any marked degree."

Macy also viewed the photograph [10] of Zubaydah lying unconscious that was taken immediately following the raid and said Zubaydah's eyes appears to be "fine."

"I do not see any see any cuts or big lacerations and no cuts around the face or nose," Macy said.

Regarding the counterterrorism official's account about Zubaydah's pre-existing eye condition and the circumstances that led to his left eye being removed, Macy said the scenario is conceivable.

"If the eye had suffered significant direct trauma, there are usually signs of injury to the surrounding skin," Macy said. "The photos don't show collateral damage. Therefore, the official explanation is very plausible."

"Rather than perforation causing infection, an infection of the cornea may lead to perforation of the globe," Macy added. "In this case, as there is a claim of a preexisting condition, [Zubaydah] may have suffered a previous corneal ulcer that thinned and weakened the globe. He may have had a bacterial infection or herpes of the cornea. This is almost always a unilateral process. Such infections may be severe enough to perforate the eye, rendering it blind. The offending agent must be removed, leading to evisceration or enucleation."

Zubaydah's medical records would likely explain the pre-existing eye condition, but those files are classified. The government has refused to share Zubaydah's medical files with his legal team, all of whom have top secret clearance, because it contends that doing so would amount to a violation of the detainee's privacy rights, an assertion that Mickum said is "so ludicrous that it is not even laughable at this stage."

Mickum said Zubaydah now wears a prosthetic eye, but it sometimes irritates him so he takes it out and instead wears the eye patch.

Shrapnel Wound

The only known pre-existing condition that may have affected Zubaydah's eye was the shrapnel wound to his head he suffered from a mortar attack while "on the front lines" in Afghanistan fighting Soviet forces a decade prior to his capture, according to the government's classified Detainee Assessment Brief released by WikiLeaks.

That file says Zubaydah "stated he had to relearn fundamentals such as walking, talking and writing; as such, he was therefore considered worthless to al-Qaida."

Last year, the government finally admitted [11] in court documents that Zubaydah's diaries seized during the raid of the safe house "indicate that he suffered cognitive impairment from a shrapnel injury for a number of years."

But when former Justice Department attorney John Yoo prepared one of the August 2002 torture memos, authorizing the CIA to subject Zubaydah to ten brutal torture techniques, which included waterboarding and repeatedly slamming him into a wall, Yoo wrote: "Zubaydah does not have any pre-existing mental conditions or problems that would make him likely to suffer prolonged mental harm from your proposed interrogation methods."

"Through reading his diaries and interviewing him, you [CIA] have found no history of mood disturbance or other psychiatric pathology ... 'thought disorder' ... enduring mood or mental health problems," Yoo wrote.

One of the interrogation memos Yoo drafted for the Department of Defense (DoD) that was used by military personnel and contractors conducting interrogations at Guantanamo and other prison facilities operated by the DoD stated that "gouging" a prisoner's eyes out was arguably legal under the president's executive powers unless "specific intent" to harm the prisoner could be proven.

"Infected Eye"

Details about Zubaydah's eye appear to have first surfaced in a 2008 FBI inspector general's report [12] that contained details of his interrogation conducted by CIA contractors, which former FBI special agent Ali Soufan, identified in the report by the pseudonym "Thomas," said amounted to "borderline torture."

In the report, the then-FBI Inspector General Glenn Fine said Soufan's colleague, FBI special agent Steve Gaudin, identified by the pseudonym "Gibson," disclosed to his fiancé in 2002 or 2003 that he accompanied Soufan to the black site prison in Thailand to "interview a notorious terrorist."

Soufan had interrogated Zubaydah at the CIA's black site prison in Thailand in April 2002, before CIA contractors took over, and had tended to his wounds.

Gaudin's fiancé at the time, identified in the report as "Morehead," "stated the terrorist was missing an eye. [Gaudin] told [the FBI during an interview into the matter] that Zubaydah had an infected eye, sometimes wore an eye patch and eventually got a glass eye," which seems to indicate that Zubaydah's eye may have already been removed by the time both agents arrived at the black site in April 2002.

Truthout tried to reach Gaudin's ex-fiancé to determine if Gaudin disclosed additional information to her about Zubaydah's eye and his medical condition in general, but she did not return emails or voice mail messages left on her cell phone.

Daniel Freedman, who works as director of strategy for policy and analysis at Soufan's consulting firm, The Soufan Group, said Soufan confirmed that Zubaydah had a "preexisting eye condition."

"I checked with [Soufan] and the [counterterrorism official's] account is correct," Freedman told Truthout in an email.

Neither Freedman nor Soufan elaborated.

Kiriakou, who wrote a book [13] about his tenure at the CIA and the capture of Zubaydah, said, "I now recall that when [Zubaydah] first opened his eyes, his left eye was cloudy, like it had a significant cataracts film over it."

"Zubaydah spent most of the time with his eyes closed and I just forgot about it," said Kiriakou, who was surprised to learn Zubaydah's eye had been removed. "It looked like a really bad cataract. I was with him about 48 hours when the plane came. I do not recall the Pakistani doctors paying any attention at all to his eye. They were so focused on his wounds that they didn't pay any attention to anything else."

Zubaydah Blames Interrogators

Zubaydah seems to be under the impression that he lost his eye as a result of abusive treatment.

During his Combatant Status Review Tribunal hearing [14], Zubaydah said the interrogators subjected him to "months of suffering and torture, physically and mentally, they did not care about my injuries that they inflicted to my eye, to my stomach, to my bladder and my left thigh and my reproductive organs."

The counterterrorism official also said that any suggestion that Zubaydah "lost the eye while being captured or as a result of interrogation would be flat wrong."

But other detainees' claimed there were attempts to gouge out their eyes.

In a recent interview [15] with The Guardian UK, Omar Deghayes said a Guantanamo guard "pushed his fingers inside my eyes" and blinded him in his right eye.

"I didn't realise what was going on until the guy had pushed his fingers ­ inside my eyes and I could feel the coldness of his fingers," Deghayes told The Guardian UK, explaining that the incident took place when he protested a policy that called for detainees to walk around without pants. "Then I realised he was trying to gouge out my eyes."

Shaaker Aamer, the last British detainee who remains imprisoned at Guantanamo, told his attorney [16] he also experienced similar treatment. Aamer said naval military police brutally tortured him for two and a half hours on June 9, 2006, "gouged his eyes" and "held his eyes open and shined a maglite in them for minutes on end, generating intense heat," during a brutal two-and-a-half hour beating on June 9, 2006, after he refused to provide his captors with a retina scan and fingerprints.

Mickum said the loss of Zubaydah's eye and the government's rationale that it was the result of a "preexisting eye condition" only raises additional questions about Zubaydah's treatment.

"The only way to rule out that anything nefarious took place is to look at Zubaydah's medical records," Mickum said. "Until that occurs, the jury is way out and the government is not entitled to any credibility. They've lied consistently starting with the fact that they said Zubaydah was never tortured. The only inference one can draw is that he lost his eye as a result of mistreatment by the government and that he received poor medical treatment in the aftermath of his injury."