ROGER FITCH ESQ • WEDNESDAY, MARCH 14, 2012
Guantánamo: give evidence against other prisoners and we might let you out, one day ... As long as you're not too angry ... The new prosecution paradigm and the latest stitch-up ... Plus, the legal basis for drone killing of Americans without due process ... Roger Fitch - Our Man in Washington
"Farcical judicial trials conducted by us will destroy confidence in the judicial process as quickly as those conducted by any other people ... there are certain things you cannot do under the guise of a judicial trial. Courts try cases, but cases also try courts." US Supreme Court Justice Robert Jackson, Chief Prosecutor, Nuremberg Tribunal.* * *"Robert Jackson ... would turn over in his grave if he knew what was going on at Guantánamo." Henry King, Jr., Associate Prosecutor, Nuremberg.
* * *
The first new military commission prosecution was recently announced, against the Pakistani Majid Khan. A plea bargain quickly followed. If all goes well, Mr Khan, held without charge since 2003, will be sentenced in 2016. Is that speedy, or what?
The media were mostly cock-a-hoop over the prospect of new "war crime convictions," even though Khan, like the all the other people charged in commissions since George Bush first set them up in November 2001, will not stand convicted of any crime actually applicable to him under the law of war.
As Melina Milazzo, counsel for the Law and Security Program, noted:
"The US military commission system, now in its third incarnation, faces lengthy litigation over the legality of trying individuals for offenses that do not actually constitute war crimes, the potential ex post facto problems with prosecuting conduct not considered criminal until the passage of the Military Commission Act, and the scope and meaning of the rule and procedures applicable during trials."
Khan, who finished school in Baltimore, is the only Guantanamero with American resident status.
He's a client of the Center for Constitutional Rights, which noted:
"Majid Khan is unique among Guantánamo prisoners in two important respects. First, he has long had legal status in the United States, as well as other substantial, voluntary ties to this country, which vest him with full constitutional rights. Second, in March 2003, he was captured and forcibly disappeared by the United States. There is no serious dispute that he was abducted, imprisoned and tortured by US officials at secret overseas 'black sites' operated by the Central Intelligence Agency before he was transferred to Guantánamo Bay in September 2006. Nor is there any serious dispute that Majid Khan's detention and interrogation violated US and international law."
Just as it seemed the question of constitutional rights would be litigated, however, Mr Khan made a deal.
In return for a finite sentence, Khan will plead guilty and testify against Khalid Sheikh Mohamed.
The theory is that, since KSM has been badly tortured, "clean" evidence is needed for use against him.
Of course, Majid Khan has also been tortured in the same CIA dungeons, so it's hard to see the point of the exercise, other than taking the current issue of Khan'storture off the table.
It would make more sense to use people who haven't been tortured, to grass up those who have.
In any case, there's a Pentagon offer to remove from its dubious indefinite detention list those Gitmo prisoners who "co-operate".
It's part of a strategy to get prisoners to testify against each other in return for "lighter" plea-bargained sentences, or simply better treatment while awaiting justice.
It's a new era, where Guantánamo prisoners will have to denounce each other to save their lives, or at least escape lifelong extrajudicial detention.
Under the new prosecution paradigm, commission defendants will have to confess to pretend war crimes if they want to go home. From now on, plea bargains, and coffins, would seem the only way out.
The media have descended into interminable discussions as to whether sentences have been "light" or "heavy", while neglecting to inquire if the crimes actually exist.
The fact that the "war crimes" don't, in fact, exist is not seen as a problem. Successive US governments have skilfully prevented court rulings on the validity of any of the charges.
Luckily, when a defendant confesses as Khan did and pleads guilty, there's no appeal.
At the conservative Lawfare, resident bush-lawyer and terrorism savant Ben Wittes thought the Khan stitch-up was great, and the Washington Post agreed.
* * *
The National Defence Authorisation Act, with its facility for military detention of civilian "terrorists," has only just passed (see January post), but signs of its intended use are already emerging.
In DC Circuit appeals, the government is using the NDAA provisions to change the rules onhabeas for Gitmo prisoners.
Scotusblog has the latest update on the status of Gitmo habeas appeals.
* * *
The government claims it's adhering to law in its lethal drone strikes.
Pentagon General Counsel Jeh Johnson spoke at Yale Law School defending the aerial assassinations in a speech reviewed by Gabor Rona and Emptywheel.
Attorney General Eric Holder followed-up Johnson's speech with an address at Northwestern Law School, setting out for the first time the legal basis for intentionally killing Americans without due process.
Georgetown law prof David Cole was highly critical of Holder's performance, and even the conservative Washington Times was shocked by the attorney general's assertion of an exclusively "presidential" due process.
* * *
Literary allusions have been used to analyse Guantánamo: Kafka's The Trial, and 1984.
The latest one explains the peculiar reluctance of the Pentagon to release a single innocent person from Gitmo.
The Count of Monte Cristo effect cuts in when a person is thevictim of an outrageous miscarriage of justice.
Readers of the classic novel by Alexandre Dumas will remember the vengeance of the innocent man unhinged by his shocking mistreatment.
Torture, humiliation and years of extrajudicial imprisonment - followed by sham trials for newly-invented crimes - will usually do the trick.
In the case of the "convicted terrorist" Omar Khadr, held at Guantánamo since his 2010 plea deal, there's also the palpable bad faith of a Canadian government that has failed to bring him home since he became eligible for repatriation last October.
A fear of the Monte Cristo syndrome must be behind some Canadians trying to block Khadr's scheduled repatriation: they've got a psychiatrist who says Omar is "full of rage" over his treatment at Guantánamo.
Even if he wasn't a danger to Canadian society before, he is now.
Now that's a Catch-22.