GTMO DOCUMENTS

FROM ROGER FITCH AND OUR FRIENDS AT JUSTINIAN

2012-01-24T06:08:00.001-08:00

Happy birthday Gitmo

ROGER FITCH ESQ • THURSDAY, JANUARY 12, 2012

Milestones and millstones ... Guantánamo's tenth birthday, as Bill of Rights turns 220 ... National Defence Authorisation Act allows for exciting possibilities - including military detention of US civilians ... The new Reichstag Fire Decree ... Latest from US Supremes ... Habeas - British courts step-in where DC Circuit fears to tread

The US reached a milestone on December 15:220 years since the adoption of its famous Bill of Rights.

It's older than the French Droits de l'Homme of 1793.

Nevertheless, for reasons best left to historians, on "Bill of Rights Day" Congress suspended large chunks of the 10 amendments (and effectively, habeas corpus) in theNational Defence Authorisation Act .

As expected, Mr Obama abandoned his shammed concerns about the NDAA, and approved a scheme for the military detention of civilians, not unlike the practices of foreign dictatorships.

January 11 marked a less auspicious milestone: 10 years of the infamous Guantánamo internment camp.

At The Nation, Georgetown Law Prof David Cole reviewed the sordid history of Guantánamo, while Lakhdar Boumediene, the man whose US Supreme Court case established an offshore constitutional right to habeas, sounded off in the New York Times.

Thanks to the NDAA, the Gitmo dungeons will be there for years to come, perhaps for use by disloyal or disaffected Americans.

Comparisons are being made to President von Hindenburg's "Reichstag Fire Decree" of March 1933.

Henceforth, we will have "a bill of rights for some," but not others.

It's what George Bush only dreamed of achieving, despite his efforts in the Padilla and al-Marri cases. Now, the authoritarian instinct is bipartisan. The complete interdiction ofhabeas is near.

The only constitutional grounds for suspension of habeas are rebellion and invasion. Ironically, the US is marking 200 years since the last war in which a foreign invasion occurred, the War of 1812 with Britain.

Joanne Mariner and The Atlantic's Andrew Cohen examined Obama's embrace of latent martial law.

As Mariner noted, Obama started it all with a March 2009 brief in the Guantánamo Bay Cases, asserting the same expansive view of indefinite military detention claimed by George Bush.

Gitmo: soon to be a home for disaffected Americans

Sadly, in justifying a war paradigm everywhere, not just battle zones, Obama's brief cited the words used by the Bush loyalist Judge Richard Leon, in the district court decision later reversed in Boumediene.

Naturally, Lawfare isn't bothered, but the NDAA adds a new layer of junk law designed to displace valid international treaties that bind the US (eg, Geneva Conventions), as well as domestic laws like the Posse Comitatus Act (1878), which restricts the military at home.

Armed with the NDAA, Congress will try to block Obama's plan (part of a peace initiative) to release Taliban military officials being held hostage - sorry, as "unprivileged belligerents" - at Guantánamo.

Obama's dismal civil liberties record is now considered worse than that of George Bush.

The British, and even the Russians are bucketing the US for its poor human rights.

Law Prof Jonathan Turley is particularly incensed.

Glenn Greenwald and Counterpunch are also outraged.

* * *

The Supreme Court's latest cert grants have been announced.

Already docketed is the civil suit of a man wrongly arrested for daring to touch Richard Cheney.

Meanwhile, Emily Bazelon reports on the Supreme Court's most vindictive decision this term.

At The Legal Pulse, the blog of the Republican-front Washington Legal Foundation, director Richard Samp is excited about the Supreme Court review of corporate responsibility under the Alien Tort Statute.

Bill Blum: gadflySomewhat surprisingly, the Obama administration has filed anamicus brief in the Kiobel ATS case supporting corporate liability, perhaps because the defendant (Shell) is Anglo-Dutch.

Another amicus in Kiobel was filed by a group of Nuremberg scholars, including Melbourne Law Prof Kevin Jon Heller.

The freelance gadfly Bill Blum is worried about three casesbefore the Supreme Court this term.

One of them is the Texas redistricting case. It's threatening to become another Bush v Gore.

Scotusblog had a preview.

Other "political questions" are likely to be on the Supreme Court's docket.

* * *

The DC Circuit may have turned its back on habeas (see previous post) but the British human rights law firm Reprieve has won a great habeas victory in the English Court of Appeals, in a case involving a US-held detainee.

In Rahmatullah, the British court went where the DC circuit refused to go in Maqaleh.

In nearly-identical Bagram detention cases, the UK court granted habeas to secure the release of a prisoner rendered to the prison from outside the Afghan theatre of war, a man who could easily have been one of the petitioners who won in DC district court but lost on appeal.

British forces in Iraq had handed Yunus Rahmatullah over to the US, who shipped him to Afghanistan.

The UK government has now demanded that the Americans release Rahmatullah.

As Harper's Scott Horton noted, the UK court implicitly rejected an opinion by Jack Goldsmith, then head of DoJ's Office of Legal Counsel and now teaching at Harvard and blogging at Lawfare.

Opinio Juris has more.

Goldsmith: ruled out Geneva protections for terror suspectsGoldsmith had opined that "operatives of international terrorist organizations" were not "protected persons" for purposes of Article 49 of the Fourth Geneva Convention, which provides that ...

"individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of motive."

It would be nice if Article 49 provided some protections to the Gitmo deportees, but it only applies to "occupied territory", a status which was recognised in Iraq but not apparently in Afghanistan.

* * *

Amnesty International's new report Guantánamo: A Decade Of Damage To Human Rights lists "10 Anti-Human Rights Messages Guantánamo Still Sends".

One of the messages is that victims of human rights violations can be left without a remedy, and that's exactly what happened to Abdul Rahim Al-Janko.

Leon: Republicans' favourite DC judgeDC judge and Republican stalwart Richard Leon recently ruledthat Al-Janko, though innocent and found not to be an "enemy combatant" - by Leon himself - has no civil remedy for his years of lawless detention.

More here.

Leon primly announced:

"War, by its very nature, victimizes many of those caught in its wake. Innocent civilians are invariably killed, and sometimes even mistakenly imprisoned. Our legal system was never designed to provide a remedy in our courts for these inevitable tragedies."

How very convenient.

FROM ROGER FITCH AND OUR FRIENDS DOWN UNDER

2011-12-24T06:24:00.001-08:00

The Republican dream

ROGER FITCH ESQ • THURSDAY, DECEMBER 22, 2011

Congressional fat cats ... Corporate crime and financial defalcation ... Constitutional violations ... Gridlock on judicial and ambassadorial nominations ... Roger Fitch surveys the Washington landscape

Roll Call has a list of the 50 richest members of Congress, and the poorest is worth $6 million.

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.

An amendment by Kelly Ayotte (R-NH) would have repealed the president's executive order banning torture, even as some observers worry about a torture return.

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 4^th 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.

From Roger Fitch and our friends down under...

2011-11-26T11:43:00.001-08:00

Land of the brave

Monday, November 21, 2011
Justinian in Roger Fitch Esq

Former general counsel of the CIA underinvestigation over drone attack "murder" remark ... War crimes don'tneed a war (apparently) ... Novel offences likely to remain on the books ...Ideological Republican circuit judges flout the Supreme Court ... Our Man inWashington reports

"Asidefrom the humanitarian aspects, it is well known that, under excruciatingtorture, a prisoner will admit almost any suggested crime. Such confessionsare, of course, not admissible in trials in civilized nations... Some of ourleaders have found that it is easy to forgo human rights for those who areconsidered to be subhuman, or 'enemy combatants'."

Jimmy Carter, the last Americanpresident moderately attached to human rights

It's all go in Washington.

The Supreme Court is back in action and has grantedcertiorari in the cases testing Mr Obama's health care legislation.

In Congress, Democrats doubtful about Democracy havejoined Republicans rejecting the Republic and support language in the NationalDefence Authorization Bill that requiresindefinite military detention.

Anyone claimed to have some connection with the Taliban,Al-Qaida or "associated forces" isat risk, even a citizen living in the US.

Over at Langley, the CIA is investigating its formergeneral counsel John Rizzo for his remarks in a Newsweek article.

In my March 21post 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.

Rizzo has otherproblems as well.

Out on the 2012 presidential hustings, Republicanaspirants naturally support assassinations, but several nostalgicallycling to torture.

Republicans already in office around the country are busypassing new voting laws makingit harder for five million suspected Democrats to vote in 2012 - that'smore than the margin in two of the last three presidential elections.

* * *

Rizzo: instrife for talking about drone "murder program"Torture andterrorists are also in the news at Guantánamo, where an arraignment has justbeen held in the first death penalty military commission brought by theUS.

Incredibly, the Obama administration chose a severelytortured prisoner for the guinea pig.

Now portrayed as the mastermind of the bombing of the USSCole in Yemen in 2000, Abd al-Rahim al-Nashiri was merely an"unindicted co-conspirator" when twoother USS Cole bombers were indicted in New York in May2003.

Although Nashiri was in US custody in 2003, he wasn'tproduced in New York as the CIA was busy torturing him in Thailand and/orPoland, perhaps to learn the whereabouts of the others - and get aconfession.

Polish prosecutors began an investigation of Nashiri'sdetention in Poland and accorded him "victim" status, but someonehas nobbled the case.

Allegedly, there's a document signed by Poland's formerprime minister regulating the CIA prison and describingwhat to do "if a dead body of one of the persons held there should appear".

Remote telecasts of the Guantánamo proceedings wereallowed, with a 40-second delay to shield "sensitive information."

al-Nashiri:first death penalty commission adjournedThis might include embarrassingor criminal activity, such as the use of private contractors like the Boeingsubsidiary Jeppesen Dataplan to abduct and render prisoners, and outrighttorture by the CIA, its contractors, and intelligence agencies in cooperatingcountries.

Nashiriis charged with various offences, none of them nice, but all save oneunknown to the law of war.

As Ireported on May 21, these "war crimes" didn't even occur during awar, and the charges describe only one actual war crime, perfidy:

"Abd alRahim Hussayn Muhammad al Nashiri, an alien unprivileged enemy belligerentsubject to trial by military commission, did, in or around Aden, Yemen, on orabout 12 October 2000, in the context of and associated with hostilities, inviolation of the law of war, to wit: by committing an act of perfidy, said actof perfidy being two men dressing in civilian clothing, waving at thecrewmembers onboard USS COLE (DDG 67), and operating and detonating anexplosives-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 wouldmake his deeds a violation of the law of war. And perfidy, though a war crime, requiresmore than waving.

Nashiri's case has been adjourned, with the defendantsagely selectinga trial date after the US elections.

* * *

Judge Brown:partisan Republican ideologueShould he somehow be acquitted, Nashiricould still beheld forever as an "enemy combatant".

That will be far easier now, thanks to a newopinion by Janice Rogers Brown that aggressively flouts the Supreme Courtand Boumediene.

Judge Brown is a partisan Republicanideologue whose appointment to the DC Circuit was battled by Democratsfor two years.

Her latest decision in the Latif case requiresthat district court judges hearing Guantánamo habeas cases alwaysaccord a presumption of regularity to government intelligence reports.

The decision worried Lawfare andthe Times,while Emptywheelwas alarmed at Latif's implications for Congressionalmilitary detentions.

Not satisfied with ignoring the Boumediene casein every Guantánamo habeas appeal, DC Circuit panels with right-wingmajorities are cancellingoral arguments altogether.

No need to confuse them with facts and arguments.

It demonstrates the surprising capacity of lower courtsto circumventand subvert Supreme Court precedent.

* * *

The military commission of Salim Hamdan is on appealin the DC Circuit, where Hamdan - now back in Yemen -is appealing hisconviction for "material Support", recently upheld by the Court ofMilitary Commission Review (seemy June post).

Mr Obama hasn't succeeded in filling the threevacancies on the DC Circuit, so there's a good chance Hamdan's appealwill be assigned to Republican activists.

They're still a majority on the circuit and stronglyattached to presidential power during real or rhetorical (terror) wars.

Unfortunately, the other CMCR decision upholding a novelwar crime, that of Ali Hamza Al-Bahlul for "conspiracy" (see my October post),could escape judicial scrutiny because Al Bahlul is refusing toauthorise an appeal.

That would leave conspiracy on the books as a war crimeeven though a plurality of the Supreme Court specifically rejected it in Hamdan.

Comforting the Comfortable.....

2011-10-19T08:11:00.001-07:00

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 4^th circuit district court applying Citizens has compounded the corporate-cash election-buying problem, see here and here, although a 9^th 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 2^nd 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 7^th circuit has also held the ATS applies to corporations, while the conservative 11^th 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 4^th 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 11^th 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 7^th 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.

From Roger Fitch and our Friends Down Under

2011-07-06T08:51:00.000-07:00

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

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

Demolition of the 5th (due process) and 6^th (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.

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

2011-06-20T07:36:00.000-07:00

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."

Why did they remove his eye???

2011-05-19T16:28:00.000-07:00

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

Wednesday 18 May 2011

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."

Scott Horton award

2011-05-11T09:26:00.000-07:00

Last night, Harper's Magazine writer Scott Horton (pictured above left) won a National Magazine Award in the reporting category, beating out the favorite, Michael Hastings's Rolling Stoneprofile of Gen. Stanley McChrystal, who lost his job as commander of NATO forces in Afghanistan. Horton's winning entry was "The Guantanamo 'Suicides': A Camp Delta Sergeant Blows the Whistle." The piece is an investigation of the suspicious deaths of three inmates at Guantánamo. I have known Horton since the mid-1990s, when we met in Central Asia. He was an unusual hybrid of corporate lawyer and human rights defender. His writing career began a bit later -- in the early years of the Bush administration with an email blast called "No Comment," a compilation of links and short commentary on national politics that he distributed to friends and interested colleagues. Its searing approach attracted much attention, led to the blog being absorbed by Harper's, and now recognition for this breakthrough article. Horton conducts his own email interviews in a "Six Questions" format, so I asked him to submit to the same. His replies follow.

O&G: In your main piece, you tell the story of Col. Michael Bumgarner. Can you catch us up as to what has happened in the meantime with the Justice Department's treatment of the three men's deaths, and in addition with Staff Sgt. Joseph Hickman, the main whistle-blower in your story?

Sergeant Hickman continues to serve with his unit, as do several other guards that night whose observations supported the article. In fact, after the story appeared a source in the office of Secretary of Defense told me that an effort would be made to "reach out" to these "disgruntled soldiers," but I'm sure the Pentagon discovered the same thing I did: These soldiers were not remotely "disgruntled." They were and are all proud to serve and proud of their service at Guantánamo, which won them commendations. They were concerned about telling the truth, however. There is no sign of any further examination of the facts by the Justice Department -- though it did use dubious national security claims to block a congressional investigation when a House Judiciary subcommittee attempted to look into it.

What more do we know now about Camp No, the black site at Guantanamo where the men appear to have been taken? Is this a CIA-run section of the camp?

I am still investigating Camp No. In the meantime I have developed more evidence that Camp No was used by the intelligence community in connection with interrogations -- including by the CIA from 2003 through 2006. But it's not clear that the CIA was the only agency authorized to use Camp No.

One of your points is that the Obama administration has treated the issues of rule of law and justice, as practiced with prisoners at Guantanamo, with the type of cavalier attitude that you documented during the Bush administration. One issue is going along with a coverup from the Bush period, but you think that similar highly suspicious suicides have occurred on Obama's watch as well. Do the cases in the two administrations match up? And how the Justice Department talks about them?

I think it's clear that the Bush and Obama Administrations have more or less the same attitude about accountability for the mistreatment of prisoners connected with the "war on terror" -- they condemn it officially but believe that those in senior positions must be fully protected from any meaningful review or punishment. "Don't look back" is the Obama motto -- which poses a dilemma for law enforcement since, aside from the world of science fiction, all crime occurs in the past. But I have to acknowledge that the Obama Administration overhauled the standards for prisoners in its first six months, and this resulted in a sharp decline in reported incidents of abuse at Guantánamo and in Afghanistan. That being said, there are still some troubled spots -- such as the forced-feeding program at Gitmo and the JSOC-run "black prison" at Bagram, where I am skeptical about the extent of changes.

The deaths in detention are particularly worrisome. On one hand, suicides are a problem common to prisons everywhere, and particularly so when the conditions of internment heighten despair (as when there is no prospect of release). On the other hand, prisons around the world routinely press claims of suicide to cover deaths in detention since that may be the least horrible explanation for the deaths. These two considerations have to be held in balance when deaths in detention are studied. I am very concerned about the deaths associated with the forced-feeding program at Guantánamo. It remains enshrouded in unjustifiable secrecy and it merits much closer study. Something is plainly wrong about this program.

Read on to the jump for more of the Horton interview.

The administration would argue that politics have not allowed it to close down Guantanamo, nor to hold public civilian trials for prisoners accused of crimes. It might even argue that these issues are third-rails in a highly charged political environment that could sandbag the administration's other priorities. Your take? What reaction are you getting when you raise these issues privately at the senior levels of the Pentagon?

It's very clear that the Obama team set out to implement the Obama campaign promise to close down Guantánamo and to reform the rules governing prisoners. They accomplished a good deal, but somewhere in the first half year they ran into an immovable obstacle that was sheltering some aspects of the Bush-era program, especially the murky role played by the intelligence community in this process -- that obstacle was plainly named Robert Gates. Greg Craig and Phil Carter, Obama's two lieutenants most committed to the changes he promised, then resigned within a few weeks of one another. There's an important story there that has not -- so far -- been told. Secretary Gates clearly agreed with President Obama that torture was counterproductive, that the Bush-style extraordinary renditions program should be shut down, and he agreed to pull back on many Bush-era excesses. But he has protected core aspects of the Bush-era programs, and he has adamantly and rigorously opposed any kind of accountability -- shielding the intelligence side with particular zeal.

President Obama plainly had the power fully to implement his promises, but he chose not to do so. This almost certainly reflects a political calculus that national security issues generally and detention issues in particular were Republican turf and he should avoid anything that put them on the political front burner. This shows us a Barack Obama who is driven by tactical election year concerns, not by the ideals of a young law professor, who addressed these issues with eloquence and vision during his 2008 campaign.

Osama Bin Laden was just killed. Obama says he got justice. Your take?

I am immensely proud of the SEALs Team Six members whose assault on the Bin Laden compound bore fruit. I am also especially proud of my high school friend Bill McRaven, who organized the mission. John Yoo says that Bin Laden should have been taken prisoner. Of course that would have been desirable. On the other hand, I don't think any of us are in a position to second-guess the SEALs and the split-second decisions they took on the ground in Abbottabad. They had every right to use lethal force if they considered themselves at risk, and I wouldn't for a second take that away from them. The mission has also served to expose the enormous problem we have had for years with Pakistan's perfidious military and intelligence service which the Obama team -- to their great credit -- have treated with a far higher level of skepticism than their extremely gullible predecessors.

You are a lawyer. Now you beat out some stiff competition to win the National Magazine Award. Are you going to go back full time to law, a continued mix of the two careers?

Now that's what we lawyers call a compound question. Still, I'll answer most of it. As a lawyer, I am focused on international or cross-border investigations. As a writer, as you will see from my work for both Harper's and Foreign Policy, I am focused on legal and national security affairs, but a good part of my work focuses on the same fields in which I practice -- although I don't write about my clients or matters in which they are interested. So my work is in the border zone. I have been writing and practicing simultaneously for a number of years now, and the blend varies from time to time, but I don't anticipate giving up either end of the game.

From Roger Fitch and our Friends Down Under

2011-03-23T08:54:00.000-07:00

USA's new found regard for international law

Monday, March 21, 2011
Justinian in Guantanamo, Law of war, Roger Fitch Esq

Batting Padilla around the federal circuit courts ... The varied meanings of habeas corpus ... "Material support for terrorism" up for review in CMCR ... The Raymond Davis case - Vienna Convention applied to CIA agent ... Roger Fitch, Our Man in Washington

Donald Rumsfeld just published his memoirs, and he's receiving conservative accolades for "defending the constitution".

Rummy gave Guantánamo his seal of approval as "one of the finest prison systems in the world", though it's far more likely he'll be doing time in, say, Europe.

The former defence secretary and his deputy Paul Wolfowitz have meanwhile succeeded in getting the civil suit against them by José Padilla thrown out.

Padilla is the American citizen seized in a civilian courtroom in New York, taken to a military brig in South Carolina, and subjected to years of pointless punishment and cruelty.

Scotusblog has the new ruling. It's a shocking decision in which an Obama appointee in South Carolina dismissed a torture suit, because it's inconvenient for important people.

It was the reverse of the decision in California in Padilla's lawsuit against John Yoo. Glenn Greenwald and Emptywheel comment.

Rummy: conservative accoladesThe Obama administration stopped its direct legal defence of Rummy and Wolfie, but pays others to do the job. More here.

When first seized, Padilla lost his habeas in New York district court, but won on appeal in the 2^nd circuit.

Then the Supreme Court remanded the case to the 4^th circuit, where Padilla won in district court but lost on appeal. At his second Supreme Court appeal, Padilla would have had five justices (with Scalia) prepared to find his military detention unlawful.

Instead, Padilla was returned to US civil courts, where his Florida conviction is still on appeal in the 11^th circuit.

His lawyers have thus far been busy in the 2^nd, 4^th, 9^th and 11^th circuits.

* * *

The lawless military commissions are resuming, with President Obama issuing a new Executive Order for military detention of "terrorists". The Guardian has more.

This great new policy means prisoners lucky enough to be charged with nothing at all get a chance to seek their release every three years.

Heller: legal impossibility of some of the Guantanamo chargesThe commissions will continue to try Guantánamo prisoners for acts which happened not only outside a war, but before a war.

Melbourne law prof Kevin Jon Heller notes the legal impossibility of some of the cases .

For years, the Bush and Obama administrations have been charging Guantánamo prisoners with "conspiracy" and "material support for terrorism."

Neither is a valid war crime, and in its 2006 Hamdan decision, a plurality of the Supreme Court noted that any "war crime" must be one recognised in the law of war, and specifically said conspiracy wasn't.

Even so, the Bush administration again charged Hamdan with conspiracy, though the jury acquitted on that offence.

The war crime of "material support for terrorism" (MST) has even less to commend it. The crime was unknown when Congress invented it, in 2006, well after any Guantanameros could have committed it.

The ex post facto problem aside, no appellate court has validated these novel war crimes - even though Bush and Obama have secured six shaky convictions.

At last, a court - albeit a Pentagon court - is set to rule on the legal status of conspiracy and MST.

A year after first hearing the appeals of Salim Hamdan and Ali Hamza al-Bahlul, the Court of Military Commission Review set new hearings on two issues: "joint criminal enterprise" (in association with conspiracy), and "aiding the enemy" for its analogy to MST.

Lawfare has the story with the briefs here and here.

In Hamdan, the Obama administration asserted a new "doctrine of retroactive re-characterization" to validate MST, while conceding it was "an exceptional technique that is not frequently used in any system [and] seldom used in order to avoid abuse".

In Al Bahlul the government cited with approval a notorious 1818 summary military tribunal conducted by the ethnic cleanser and Indian-killer General (later President) Andrew Jackson, something that Human Rights First and the Center for Constitutional Rights found scandalous.

Summaries of arguments are here and here.

* * *

Ex-CIA general counsel John Rizzo has revealed how President Obama avoids soiling his hands when ordering aerial assassinations for State Enemies: no names of the Staatsfeinde, bitte!

Rizzo can speak freely. CIA officers who break the law are not punished, and some are even promoted.

Davis: immunity for CIA man in PakistanBetter still, CIA operatives caught spying overseas instantly become distinguished diplomats.

In a new-found regard for international law, the US government asserted the Vienna Convention on Diplomatic Relations, following Pakistan's arrest of a CIA agent, Raymond Davis, for double murder.

The Vienna Convention is usually news when the US flouts it, e.g. carting off Afghanistan's ambassador in Pakistan to Guantánamo.

Davis previously worked for the dreaded corporate mercenary Blackwater and is a good shot, easily dispatching two men with every bullet hitting home, including those in the back. He even had time to photograph the dead before he was arrested.

However, he's hardly a diplomat.

In the end, Davis escaped Pakistani justice when the US arranged the payment of "blood money".

Besides embracing Islamic law and invoking the Vienna Convention, the US also brandished the International Court of Justice, whose uncongenial decisions the US customarily ignores.

In fact, it's been a big month for US support of such alternative and international institutions, usually derided as "lawfare" fora which harm American interests.

The International Criminal Court is another such forum, and the US has spent years trying to kill it off. Yet, in a surprise move, the US ambassador to the UN joined in referring Libyan officials to the ICC.

The US previously passed the "Hague Invasion Act" to punish any country bold enough to turn over Americans for trial.

* * *

The DC Circuit is now overturning every successful Guantánamo habeas that the US appeals. Usually, it's the work of partisan appeal panels featuring the dour Republicans, Brett Kavanaugh, Janice Rogers Brown and Raymond Randolph.

Randolph: most reversed judge in war crimes jurisprudenceUnderstandably, Mr Obama is in no hurry to fill the court's vacancies.

The latest activist decision by an all-Republican DC panel is in the case of Saeed Hatim. Once again, Judge Randolph, the most-reversed judge in Guantánamo jurisprudence, was on the rampage.

Law prof Steve Vladeck explains and Jurist has more.

The New York Times meanwhile has confronted the rogue judge over his role in the Kiyemba (Chinese Uighur) cases.

Jonathan Hafetz agrees at Concurring Opinions.

From Roger Fitch and our friends down under at Justinian

2010-09-17T05:16:00.001-07:00

Law of war is a moveable feast

Monday, September 13, 2010
Justinian in Law of war, Roger Fitch Esq

State Department reports to UN on human rights in the USA ... Surprisingly few US civilians killed overseas by terrorists last year ... Of all the defendants before Military Commissions, only one has been charged with an actual war crime

In January, an appellate panel of the DC Circuit ruled 2-1 (in the Guantánamo habeas case of Al Bihani) that the president is not constrained by the international law of war, a Bush claim that Obama disowned.

The majority judges in that panel were Janice Rogers Brown and Brett Kavanaugh, perhaps the most extreme of George Bush's dismal appellate appointees.

A full bench of the circuit has now denied a rehearing to Al Bihani. While the decision was unanimous, seven of nine judges disclaimed the lower court's dicta on international law.

U Texas law prof Robert Chesney sorts the 113-page decision, which has extensive opinions from the original panel's judges.

American University law prof Steve Vladeck sees it as a real improvement on the original decision.

The dissident judges were unrepentant, and Kavanaugh wrote 87 pages in which he continued his claim that Congress must expressly refer to international law for it to apply.

It's a position at odds with repeated Supreme Court decisions on Guantánamo.

Scotusblog has more.

* * *

This column usually tracks actions of the US government that challenge international humanitarian law (IHL), the law of war, as demonstrated by the highly questionable detentions and trials at Guantánamo.

In the area of international human rights (HR), however, the US has a better record.

Thirty-three years ago, Jimmy Carter began an emphasis on HR that led to annual reports by the US State Department on countries around the world - but not the US.

Now, State has produced a report to the UN that examines human rights in the US as well.

Human Rights First has more.

Perhaps the report should have covered the activities of Americans in strife overseas for human rights violations but these (and the due-process-free foreign acts of the US government) are not included.

* * *

The State Department also released an annual report, by country, on terrorism. It reveals that in 2009 a total of nine American "private citizens" were killed by terrorism overseas (14 were injured). The terrorism definition used ("premeditated, politically motivated violence perpetrated against non-combatant targets") excluded attacks on US military personnel.

That's interesting, given that the Canadian Omar Khadr is being tried in a military commission for the "terrorist crime" of killing a US soldier in battle.

Perhaps it's one reason the Obama administration is having second thoughts about Khadr's trial. After all, "legal experts" continue to maintain that the commissions are illegal.

Prof Vladeck is one of them, with a new law review article, The Laws of War as a Constitutional Limit on Military Jurisdiction, describing the invalidity of prosecutions for faux war crimes at Guantánamo.

Loyola Law School's David Glazier has also weighed in, noting that "the law of war does not proscribe the routine killing of combatants, even by those with no right to participate in hostilities".

Glazier quotes from The Conduct of Hostilities Under the Law of Armed Conflict (2004):

"With unlawful combatants, [the law of armed conflict] refrains from stigmatizing the acts as criminal. It merely takes off a mantle of immunity from the defendant, who is thereby accessible to penal charges for any offense committed against the domestic legal system."

The article says that, by trying Khadr for unknown or invalid crimes, the US may itself be committing a war crime. According to Glazier:

"The perverse irony is that the only 'war crime' present in Khadr's Guantánamo courtroom appears to be denial of a fair trial, and the perpetrator is the government, not the defendant."

And it doesn't stop there:

"Incredibly, testimony at Khadr's aborted first trial sessions indicated that an armed CIA officer in civilian clothes - an unprivileged belligerent - was among the American participants at the firefight in which [the American soldier] Speer was fatally wounded."

Nevertheless, the Khadr case continues.

As I noted in my last post, the Pentagon-selected judge doesn't think Omar Khadr was tortured, though the facts are remarkably similar to those in Mohammed Jawad's case, and Jawad's confessions were found to be forced.

Judge Patrick Parrish's rulings on the defence suppression motions have now been released. The Miami Herald has more.

The judge never bothered to address the cruel, inhumane and degrading side of Khadr's ordeal other than finding there had been no "mistreatment", yet one of the supposed benefits of the 2009 amendments to the Military Commission Act was its exclusion of coerced, not just tortured, testimony.

Khadr's motion to suppress confessions might well have succeeded had he drawn Jawad's judge, Col. Stephen Henley, rather than Col. Parrish.

* * *

The US is also backtracking on the military trial of Abd al-Rahim al-Nashiri, the USS Cole bomber.

Nashiri was formerly a guest of the CIA in Poland, where he was entertained with water boards and electric drills.

Though not currently charged, he has been identified as the only military commissions defendant ever charged with an offence that is actually a war crime - treacherously attacking a military target.

The only problem? The bombing occurred in Yemen in 2000, when and where there was no war.

As it happens, Yemen tried Nashiri for these offences in absentia, in 2004, and sentenced him to death.

The US could simply deport him, but there's a bloodlust among the ship's commander and the families of victims, and it must be sated through American proceedings.

* * *

Adding to the legal controversy around military commissions is the unexpected announcement that the Court of Military Commission Review has opted for a full bench consideration of the appeal of Salim Hamdan, the now-released Guantánamero convicted of "material support for terrorism". The appeal was heard in January.

The docket is here.

* * *

Another unfortunate appointment to the bench, Jay Bybee, has made the news again.

The 9th Circuit judge and water torture enthusiast has written an opinion explaining when a person can - and can't - have water.

Hint: you can't have it when you need it.

David Luban and Emptywheel comment.

From Roger Fitch and our friends down under at Justinian

2010-07-26T05:45:00.001-07:00

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

Long-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.

Mother 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 2002‐2008, 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.

* * *

At 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.

Get under that bus.....

2010-07-15T12:18:00.001-07:00

Congressman: Questions on CIA Interrogations

By THE ASSOCIATED PRESS

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.

http://www.nytimes.com/aponline/2010/07/15/us/politics/AP-US-CIA-Interrogations-Conyers.html?ref=news

Reflections on the 4th of July by Roger Fitch

2010-07-08T13:40:00.000-07:00

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

On 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

From Roger Fitch and our friends down under at Justinian

2010-06-25T13:21:00.000-07:00

Roger Fitch Esq • June 21, 2010

Supreme Court wonderland

Modifying Miranda ... Torture popping up everywhere … Medicos in the war crime frame … How the government switches the constitution on and off … Ballet dancing detainees could be swapped … Our Man in Washington reports

In an Alice-in-Wonderland decision, the Supreme Court has decided, 5-4, that the right to remain silent is not invoked by remaining silent.

You must speak up to say you won’t speak. Who knew?

FindLaw’s Writ comments on the modified Miranda and the National Law Journal has more.

In another counter-intuitive development, Justice Anthony Kennedy, as supervising justice for the 9th Circuit, has blocked – pending a Supreme Court appeal – the implementation of Arizona’s public election finance law, which previously had been upheld by the Ninth.

Kennedy’s decision assures that those without the generous corporate funding recently unleashed by the Supreme Court in the Citizens United decision will be unable to receive their full public funding during this year’s election cycle. Scotusblog has more.

In a decision the NY Times called disgraceful,
the Supreme Court denied certiorari to the Canadian Maher Arar in his civil damages case against US officials who rendered him to Syria as he transited JFK airport in 2002.

Arar was tortured there for 10 months.

The Canadians exonerated Arar, paid him millions in damages and apologised for their role in his rendition. The US, however, refused to take any action.

The Mounties are now investigating the US

Arar’s lawyer, David Cole (pic), has more to say.

* * *

Many policies of the Bush regime are in the news again, most notably secret detention and torture.

In June, George Bush boasted about torturing Khalid Sheikh Mohammed, and said he’d do it again,

At the same time, the American Civil Liberties Union was offering an incriminating document a day on its Torture Report website.

There’s also a new report by the Physicians for Human Rights on Bush administration experiments in torture.

Such practices violate the US government’s “Common Rule” requiring informed consent in human experiments, and could also be a war crime.

The New York Times called them medical ethics lapses, but others weren’t so kind.

Mother Jones and Scott Horton were also harsh.

Perhaps instead of interrogators or lawyers, the initial war crimes convicts will be medicos: the Justice Department lawyers neglected to invent legal cover for human medical experiments.

Actual ignorance of law may now be added to John Yoo’s impressive record of incompetent legal mischief.

Redefinition of prohibited biological experiments came afterwards, in retrospective amendments to the War Crimes Act, as Jason Leopold notes.

Securing the passage of such legislation could be … a war crime.

* * *

Earlier this year the UN released a report on secret detention, with particular attention to the US and its confederates.

In May, the UN’s Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, NYU law prof Philip Alston (seen here), tabled a report on the targeted killing programs of the US, Russia, Israel and other rogue states.

Alston discussed the report in a Scott Horton interview.

The UN reports should provide plenty of work for Rosa Brooks, the well-known human rights lawyer who will head the Pentagon’s new Office for Rule of Law and International Humanitarian Policy.

The DoJ is also taking steps to address the, uh, public relations problem, with a new Human Rights and Special Prosecutions Section that vows it will prosecute (some) war criminals.

* * *

Torture also popped up in the Ahmed Ghailani terrorism case in New York federal court, where Judge Lewis Kaplan (snap) predictably ruled that pre-trial torture was no reason to dismiss the case.

Emptywheel comments. A ruling on the denial of a speedy trial is still pending.

Ghailani’s five years of overseas off-books detention, despite a valid indictment pending in New York, were easily disposed of by the DoJ:

“Neither the manner by which a defendant is brought to court for prosecution nor the conditions of his confinement prior to that prosecution are valid grounds for dismissal of an indictment.”

* * *

On May 21, in Al Maqaleh v Gates, the DC Circuit greenlighted habeas-free detentions at Bagram of “terrorists” captured outside theatres of war.

This circumvented habeas rights thought to have been granted by the Supreme Court in Boumediene.

However, the court said:

“We do not ignore the arguments of the detainees that the United States chose the place of detention and might be able to evade judicial review of executive detention decisions by transferring detainees into active conflict zones, thereby granting the executive the power to switch the Constitution on or off at will.”

While the court doubted the possibility of such bad faith, Obama is now contemplating just such transfers.

Meanwhile, the Guantánamo Task Force Review report – mandated in Mr Obama’s post-inaugural orders – has confirmed that the great majority of those held at Gitmo shouldn’t be there.

The Washington Post and Andy Worthington comment.

In the 50 Guantánamo habeas cases decided so far, the government has lost all but 14.

In most cases, there was no credible evidence that the detainees had done anything qualifying them as “enemy combatants.” The latest is here.

The Bush administration was clearly unaware of – or indifferent to – what is required for a civilian to be treated as a combatant.

Mr Obama has less excuse, thanks to the International Committee of the Red Cross and the recent publication of the ICRC Guidelines on Direct Participation in Hostilities.

* * *

One of the recent DC habeas decisions was that of the only European still held at Gitmo, the Russian Ravil Mingazov.

The district court ordered his release.

Mr Mingazov (pic) doesn’t want to go back to Russia in light of the bad things that happened to other Russians who were returned, stigmatised as “terrorists”.

Happily, Amherst, Massachusetts, offered him a home.

Unfortunately, the president, like his predecessor, regards court orders as only advisory, and has made no move to resettle the Russian, who Congress claims can’t be brought to the US.

A solution is possible, however.

Mingazov, a former Russian soldier and accomplished ballet dancer, is held in violation of the law of war by Americans at Guantánamo.

As it happens, Bowe Bergdahl, a US soldier and also a trained ballet dancer, is held – equally illegally – by the Taliban in Afghanistan.

Why not an exchange, for the sake of art?

ACLU FOIA documents

2010-06-09T20:16:00.000-07:00

Bush Era

· February 2004 “Global Screening Criteria for Detainees” (starting at OSD 46 and starting at CENTCOM 281)

o Suggests that pre-2004 there had been a screening policy only for “those enemy combatants detained in Operation Enduring Freedom in Afghanistan” but not for all “individuals detained in the war on terrorism” and that this guidance was meant to “broaden[ ] extant policy to cover enemy combatants regardless of where they were captured.” Also discusses criteria for who could be transferred to Guantánamo (OSD 46)

o This criteria would apply to “all terrorists whom the President has so designated because they pose a threats to the United States or US interests, or are of strategic intelligence or law enforcement value to the United States” (OSD 46)

o Explains view of the global battlefield: “The United States is engaged in an armed conflict with al Qaeda, its supporters, and other designated terrorists organizations that have targeted the United States and its interest. This is an armed conflict against terrorist organizations of global reach and is not confined to one geographic area or one theater of operations.” (OSD 48)

o Individuals captured anywhere could be detained in DOD facilities as enemy combatants if they were international terrorists or members of terrorist organizations, posed a threat to the United States or US interests, and were of high operational or strategic intelligence or law enforcement valued to the United States. (OSD 48)

o Of those designated enemy combatants as outlined above, commanders could “only transfer to Guantanamo those whose exploitation require[d] the specialized capabilities available at Guantánamo.” (OSD 48). “Low-level” enemy combatants who represent only a tactical force protection threat were not eligible for transfer to Guantánamo. (OSD 46). Guantánamo was meant to “function as a strategic intelligence gathering center” and should be used to house only those who were “of high operational or strategic intelligence or law enforcement value.” (OSD 49)

o Combatant commanders and “Mobile Detainee Review and Screening Teams” made initial enemy combatant determinations and determinations whether individuals should be sent to Guantánamo. (OSD 49, 52).

o Internment Serial Numbers had to be assigned within 5 days. (OSD 52). Unclear why they were not required immediately.

o Notification to the Secretary of Defense and Joint Chiefs of Staff required whenever transfer to Guantánamo “or other designated detention facility” (NOTE: unclear whether DOD facilities only or also CIA facilities) recommended. (OSD 53)

o Notification also required when DOD obtained control of any individual 15 years-old or younger. (OSD 53).

o Definitions of “enemy combatants” (including mere membership); “intelligence value”; “law enforcement value” (assessment that “the individual possesses information relevant to a criminal investigation or is a possible target for prosecution for alleged criminal activity”); and “threat to the United States or US interests” (OSD 55-56)

· August 2003 Detainee Screening Policy in Afghanistan (OSD 58-59)

o Criteria for who could be detained redacted but suggests potentially big catch-all for “any other whom screeners suspect may pose a threat to US interests, may have strategic intelligence value, or may be of law enforcement interest” (OSD 58)

· December 2002 Implementing Guidance for Release of Transfer of Detainees under DOD Control to Foreign Government Control (OSD 11- 27)

o Some discussion of how some individuals detained as enemy combatants may have been the subject of criminal investigation, considered useful in criminal investigations or prosecutions, and even potentially prosecutable themselves – seems to recognize people could be of criminal interest.

§ Notes Secretary of Army can recommend transfer or release of “enemy combatant” detainee after criminal investigation (OSD 14-15); that among the documents the Detainee Policy Group would consider when reviewing release and transfer recommendations was “record of criminal investigation interviews, reports and summaries on the detainee, and a statement assessing the sufficiency of the law enforcement investigation” (OSD 19); and “whether continued detention of [the] individual is required for a US criminal investigation or prosecution” (OSD 25)

§ Notes when they released people they could keep their effects and property if they had continued “intelligence or law enforcement value” (OSD 23)

o Discusses very early version of detainee “status review” procedures (pre-Supreme Court rulings) and determinations for who could be detained, transferred to Guantánamo, or released. This appears to have applied to any person in DoD custody anywhere in the world. This process appears to have been even less meaningful than the old Bagram process – which Judge Bates noted was worse than the CSRT process the Supreme Court had found inadequate at Guantánamo, and less meaningful than the CSRT process implemented at Guantánamo in post-Hamdi.

§ Defines enemy combatants as including any member of al-Qaeda, the Taliban, or other group (regardless of actions) (OSD 12)

§ Within 90 days of being brought into DOD custody, the detainee combatant commander would decide based on “all available and relevant information” whether the detainee was an enemy combatant. (OSD 12). This determination appears to have been made unilaterally by the commander (OSD 12-13).

§ Thereafter, the commander would review an enemy combatant’s status annually. (OSD 13)

§ The documents suggest that the Secretary of the Army and Criminal Investigation Task Force, following a criminal investigation, could made release or transfer determinations as well (OSD 14-15)

§ The Assistant Secretary of Defense for Special Operation and Low Intensity Conflict (Detainee Policy Group) and the General Counsel of the DOD would review whether a detainee should be released or transferred (OSD 14-15)

§ The documents discuss the existence of a “Interagency Experts Group” that is involved in release or transfer decisions but other than DOD, the participants in that group are redacted. (OSD 16)

§ This guidance lays out the specific responsibilities of each play including the Under Secretary of Defense for Policy; the Assistant Secretary of Defense for Special Operation and Low Intensity Conflict (“SOLIC”) (which seems to have had the most control/power); Detainee Policy Group within SOLIC; Assistant Secretary of Defense for Public Affairs; General Counsel of DOD; Director of Joint Staff; Combatant Commanders; Secretary of the Army; Interagency Experts Group; national Detainee Reporting Center

· Documents concerning the transfer of a “Third Party National Held at Bagram” to Pakistan (OSD 94-95)

· Documents concerning the transfer of Bagram detainees to the Afghan government/Afghan custody for prosecution in the Afghan National Detention Facility or participation in the Afghan reconciliation program (2007-2008)

o A 2004 and 2008 documents discussing delegation of authority from Pentagon to CENTCOM’s to release low-level enemy combatants to the Afghan government when “consistent with U.S. national security interests” (OSD 6, 8, 9-10)

o Primarily transfer of “Low-Level Enemy Combatants” (OSD 1) who were “low-risk” and “potentially prosecutable,” under Afghan law (OSD 2)

o Several documents suggest that DOD had decided or agreed to transfer detainees to the Afghan government at a certain, perhaps arbitrary, rate (OSD 6, 38, 60-61, 96-97)

o Some documents discuss the number of transferred detainees the Afghan government has prosecuted and, for those convicted, whether they received time-served for their time at Bagram or received additional prison sentences. However, the specific numbers of prosecuted detainees and the length of their criminal sentences are redacted. (OSD 6-7, 60, 96-97).

· A 2007 document (OSD 44) discusses the recommendation that the Afghan government be allowed to participate in the (old) status review board process at Bagram for Afghan detainees and the recommendation was approved. It is unclear what kind of participation/role the Afghan government had or whether it ever came to fruition.

· Documents discussing the transfer of on Afghan national detained at Bagram to DOJ custody in the United States for criminal prosecution for drug-related crimes (OSD 62-64)

· Documents concerning granting the Afghanistan Independent Human Rights Commission Access to the Bagram facility in 2005 (OSD 77-78) and 2010 (OSD 75-76)

· 2006-2007 documents concerning policy for granting foreign government access to detainees at Bagram (OSD 82-87). One document notes that foreign government visits are “for intelligence or law enforcement purposes” only “not for consular purposes” (OSD 86). DoD would be provided with “copies of all records of conversations and other information gathered by the foreign government officials.” (OSD 87)

· 2007 documents concerning whether to permit family members and village elders to visit Bagram detainees (OSD 88-90)

· 2007 document regarding need for continued enemy combatant status review determinations (CENTCOM 300-302)

· 2005 documents regarding policy for body cavity exams for detainees in DOD custody (CENTCOM 304-308)

· Memo re Counter-Resistance Techniques in the War on Terrorism (OSD 68-74) (Previously released to us in Torture FOIA)

Obama Era

· February 2010 revised policy guidance regarding access to detainees and detention facilities in Afghanistan (CENTCOM 309-318) (covers access by non-DOD U.S. government agencies, foreign governments, media, and NGOs)

o Note: confirms non-DOD agencies still permitted at Bagram to conduct interrogations, debriefings and other questioning of DOD detainees (although they must adhere to DOD interrogation policy) (CENTCOM 314-315)

· Policy regarding waiver of autopsy requirements for detainee deaths (CENTCOM 329-332)

From Roger Fitch and our friends down under at Justinian

2010-05-10T13:54:00.000-07:00

He even allowed that person (now a government witness) to use his phone to ring al-Qaeda.

A powerful piece about the Hashmi case by the journalist Chris Hedges appeared last year.

As a university student in Brooklyn and London, Hashmi attracted the attention of authorities through conspicuous on-campus protests against the treatment of Muslims.

His extradition from the UK was a sensation as it was the first test of Tony Blair’s one-sided speedy extradition treaty with the US.

Slate has more on Hashmi.

In New York, Hashmi was softened up by three years of rigorous pre-trial solitary confinement almost unique in American history.

Then, the federal prosecutor sought and obtained an order for an anonymous jury based on (prospective) claims of jury intimidation.

Confronted with a broad material terrorism conspiracy charge and nameless jurors, Hashmi threw in the towel and agreed to a guilty plea that could see 70 years in prison reduced to ten.

Whenever he gets out Hashmi’s unlikely to again lead campus crusades.

Andy Worthington comments.

The other April spectacle in the War on Terror took place in Guantánamo, Cuba, where Mr Obama, like his predecessor, seeks to militarise civilian offences such as terrorism support through irregular military commissions at odds with the requirements of the US constitution and US material support statutes.

In the latest case, a military commission pre-trial hearing was held for the Canadian Omar Khadr (pic), charged with five “war crimes” that are variously invalid, inapplicable and/or unknown to the law of war.

One of Khadr’s crimes, material support for terrorism – invented by Congress years after the alleged acts – has been used successfully against three defendants, including David Hicks (the other two are appealing – see my last post).

Nevertheless, retrospective legislation is forbidden by the US constitution, and Congress has no power to pass such laws. The foreign citizenship and military custody of defendants and their place of trial are all irrelevant.

As in the case of David Hicks, there was no Military Commission Manual as Khadr’s trial approached.

But this time, something was cobbled together, hours before the hearing began.

The National Institute for Military Justice and other groups unsuccessfully sought to participate in the manual’s rule-making, perhaps to counter what happened last time, when the Pentagon added things to the manual that weren’t in the Act.

The previous manual imported a joint enterprise theory into the conspiracy charge in a vain attempt to make it valid, but this was struck out by a commission judge in the first round of commissions.

Now it seems the Pentagon has tried to subvert the legislation once again.

Perhaps inspired by the DC Circuit’s recent ruling that the law of war doesn’t apply to presidential acts in war (see my post of January 26), the government has inserted into the manual a rule that law of war convictions don’t require law of war violations.

The manual states that:

“An accused may be convicted in a military commission … if the commission finds that the accused engaged in conduct traditionally triable by military commission even if such conduct does not violate the international law of war.”

Say again? Catch-22 was, after all, a book about war.

As for “murder” as a war crime, former Guantánamo military defence counsel David Frakt (pic) notes that in the (2006) Military Commissions Act:

“The theory underlying this offense was that any attempt to fight Americans or coalition forces was a war crime. This status-based definition conflated two different concepts – unprivileged belligerents and war criminals.”

According to Lt Col – now law prof – Frakt:

“In the 2006 MCA, Congress rejected the status-based crime of ‘murder by an unprivileged belligerent’, replacing it with the related, but more narrowly defined, ‘murder in violation of the law of war’. The statute made it plain, as the name implies, that this offense applied only to killings that violated the law of war. Despite this clear distinction, military commission prosecutors argued in three separate cases convened under the 2006 law that ‘murder in violation of the law of war” really was just ‘murder by an unprivileged belligerent’ by another name, explicitly claiming that the mere status of a person as an unlawful combatant rendered any hostile acts committed by him violations of the law of war. Three separate military judges in three commissions (Salim Hamdan, Mohammed Jawad and Ali al Bahlul) rejected the government’s argument, each ruling that the mere status of unprivileged belligerency was insufficient to prove a violation of the law of war.”

The Canadians have the best reporting about Khadr’s trial, including a last minute filing in Washington and rumoured plea deals.

Spencer Akerman (pic) has been covering the Guantánamo trial for the Washington Independent, including the sensational development in which the Pentagon banned four reporters from Guantánamo for identifying Khadr’s Interrogator #1.

(Joshua Claus is his name and he was convicted of abuse after the death of a detainee in custody.)

Up to now, media comment has been confined to the peripheral issues of trial procedure, the purity of evidence and Khadr’s status as a 15-year old at the time he was arrested.

Preliminary matters included pleadings on the admissibility of confessions alleged to have been made under duress (e.g. to suspect interrogators such as Joshua Claus).

There was also controversy over the alteration of an interrogation report in an apparent attempt to implicate Khadr.

Soon, however, more fundamental issues must be confronted, such as the fact that “material support” has never been a war crime, and is in any case a retrospective law as applied to Khadr.

As such, it violates international law and the US constitution.

The law of war as well as self-defence would seem to make Khadr’s conviction for “murder” impossible where the person killed was a soldier and no treachery or unlawful weapon was involved.

However, the law of war does make it a war crime for soldiers to shoot a belligerent who is hors de combat.

Khadr was already gravely injured when captured, and was shot twice again – in the back.

From Roger Fitch and our friends down under at Justinian

2010-03-14T14:07:00.001-07:00

Roger Fitch Esq • March 11, 2010

Our Man in Washington

Prez Obama’s “alternative” national security police is in ruins … John Yoo cocky after getting a clean bill of health from DoJ fixer … Clarence Thomas’ chambers a breeding ground for torture lawyers … Another Cheney chucking muck

The Republican Lindsey Graham of South Carolina is reportedly “helping” Barack Obama solve his “Guantánamo problem”, by forcing the 9/11 defendants and other detainees out of the indisputably valid courts and back into the dodgy military commission system.

The quid pro quo? Graham stops white-anting Obama’s professed plan to close Guantánamo.

Yet it’s unclear why Obama needs Lindsay Graham. He has 59 of the 100 senators, and only a handful of them are backsliding “Blue-Dog” Democrats.

Senator Graham is frequently portrayed as knowledgeable on military law – he’s a former judge advocate and active in the Air Force Reserves. However, he seems remarkably ignorant of the US constitution’s restraints on military interference in domestic law.

That’s why he’ll threaten to support the Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010 introduced by his colleagues in the Senate.

It’s hard to count the number of ways the McCain-Lieberman Bill is unconstitutional.

For starters, it authorises the military to seize, interrogate and potentially hold indefinitely certain accused criminals (not necessarily belligerents) in or out of the US, without advising them of their legal rights or allowing them lawyers.

Jurist has more.

Having to enlist your enemy for help is emblematic of Mr Obama’s dilemma: how to govern without leading.

Reading between the lines of mainstream media stenography, you sense that Obama’s “alternative” national security policy is in ruins.

Meanwhile, debris from the Bush Regime, never removed, piles up every day. Tangible evidence of the last government’s crimes lies in the street, festering.

On February 14, for instance, Dick Cheney (snap), former VP of the US, confessed to torture on national television, and nothing happened.

One of Cheney’s freely admitted victims was Abu Zubaydah, who appears to have had the first of his 83 partial drowning experiences well before worthless justifications for torture were cooked up by Mr Cheney and John Yoo.

Equally undaunted, Mr Yoo, oblivious of Nuremberg precedents for lawyers concocting criminal policies, is boasting in a new book about his policy role in fixing up the law around the Cheney/Bush torture requirements.

Perhaps Yoo has reason to be cocky.

As expected, the final recommendation in the report of DoJ’s Office of Professional Responsibility gave the torture architects Yoo and Judge Jay Bybee a more or less clean bill of health for their opinions justifying torture when they worked for the Office of Legal Counsel.

The OPR report’s mild recommendations that Yoo and Bybee be referred to bar associations for discipline was overruled by a career Justice Department fixer, David Margolis, who opined that incompetence and poor judgement, not ethics violations, were involved.

The DC bar’s most important ethics rule, against counseling a crime, was not even considered by OPR.

As legal ethicist David Luban notes, Margolis dismissed the relevance of the leading federal court case, directly in point on water torture, United States v Lee.

In preparing their opinions, Bybee and Yoo ignored this precedent, an action that could not have occurred in good faith as the case comes up instantly when torture is researched.

Scott Horton contrasted OPR’s treatment of Yoo and Bybee with that meted out to Jesselyn Radack (pic), the only DoJ lawyer referred for state bar discipline.

Ms Radack’s offence? As the DoJ legal ethics adviser in 2001 she fruitlessly ruled that the “American Taliban” John Walker Lindh had a right to see the lawyer his lawyer father had retained for him.

Congress immediately announced it would investigate the current ethical lapse by DoJ’s ethics watchdog.

The chutzpah of John Yoo meanwhile is unbounded.

According to Yoo, his torture advice has been vindicated.

In The Wall Street Journal he’s gone further, and claims he did Obama a favour.

The OPR report has been posted on the House Judiciary Committee website, together with the earlier, highly critical, drafts that were rewritten to exonerate Yoo and Bybee.

The OPR report reveals a lot we didn’t know, e.g. the names of additional torture lawyers and consultants and here.

Emptywheel couldn’t help noticing that (Jay Bybee aside) the four leading torture lawyers had all been law clerks for Supreme Court Justice Clarence Thomas (snap).

Thomas, like Justice Antonin Scalia, does not believe that the eighth amendment’s proscription of cruel and unusual punishment applies to acts other than judicial punishments.

The LA Times has more.

Among the many disclosures in the OPR report is Yoo’s courageous view that presidents can properly order civilians massacred.

Even more would be known about Yoo’s interactions with the CIA and the White House if his emails had not mysteriously disappeared.

The New York Times thinks this convenient event should be investigated.

The House Judiciary Committee chairman is asking for the White House end of the emails , and CREW – Citizens for Responsibility and Ethics in Washington – wants the originals.

Emptywheel has been looking at the refusal of CIA lawyers to cooperate with the OPR investigation and the saga of the missing documents.

Dahlia Lithwick as well as David Cole and FindLaw’s Writ have more.

John Yoo still faces a civil torture case in San Francisco.

* * *

Salim Hamdan’s successful Supreme Court advocate, Neal Katyal, now appears in the Supreme Court to oppose detainees’ rights, apparently willingly, in his new capacity of Deputy Solicitor General.

Nevertheless, some of the dimmer opposition senators are making much of the fact that DoJ dares employ lawyers who once represented Gitmo prisoners. Can they be trusted?

For the right wing it’s proof that Obama’s lawyers are soft on terrorism and frightfully unpatriotic.

In a lurid McCarthyesque video put out by Dick Cheney’s daughter Liz (pic), these nine lawyers are called the Al-Qaida Seven.

But as National Institute of Military Justice director Eugene Fidell reminds us, the military lawyer who fiercely represented Roosevelt’s despised “Nazi Saboteurs” became Truman’s Secretary of War.

In fact, at least 34 of the 50 largest American law firms have represented Gitmo prisoners or filed amicus appeal briefs in their support.

From Roger Fitch and our friends down under at Justinian

2010-01-29T12:10:00.000-08:00

Roger Fitch Esq • January 26, 2010

Our Man in Washington

Companies transmogrify into people as US Supreme Court strikes down laws limiting corporate funding of politicians … The deadline has come and gone but Guantánamo remains open for business … New evidence on detainee “suicides” ... The laws of war don’t apply to war

“The country is finished. Its all over. But you know, with a new republic like this, if you missed being here at the beginning, the next best thing is to be here at the end.” Gore Vidal

The Supreme Court has announced its decision in the long-awaited campaign finance case, Citizens United v Federal Electoral Commission, and it assures that Americans will continue to enjoy the best government money can buy.

In a widely-expected 5-4 decision, the court struck down limits on corporate spending in elections, overruling legislation whose antecedents date back to 1907 and decades of precedents that had held firm when Sandra Day O’Connor was still on the court.

How? The conservative majority found that corporations have the same First Amendment rights as people.

This new development in corporate personhood led Justice John Paul Stevens, in his 90-page dissent, to wonder if corporations should now be voting, since that too is a form of speech.

Lawyer for Citizens United, Theodore Olsen, told The National Law Journal that the turning point in the case came in March last year during the first oral argument.

Under some pressure deputy solicitor general Malcolm Stewart acknowledged that a book sponsored by a corporation could be banned under federal law if it contained material for or against a candidate’s election.

“Justices were slack-jawed.”

Opinions varied as to the decision’s effect.

A Seattle Times article thought the decision might unleash a trillion dollars in corporate spending in the next election cycle.

The apostate Nixon lawyer John Dean, and the Brennan Center’s Michael Waldman compared it to Bush v Gore – a brazen, partisan act by a Republican majority.

NPR has more and The Nation had already predicted the dangers to democracy inherent in the decision.

As the advocacy group Justice at Stake pointed out in its amicus in the case, there may be grave consequences for states that select judges by popular election.

Liberal law professors found it a clear case of judicial activism and here, but one prof sees a possible silver lining in the application of libel law to corporations, particularly during election campaigns.

Other, mostly gloomy, predictions abound here and here.

New laws are being proposed to offset the decision, but it’s hard to see what can be done about a ruling grounded by the Roberts Court in constitutional dogma.

A constitutional amendment may be the only thing that will save the republic.

* * *

The deadline for closing Guantánamo has come and gone.

Not only is the island prison still open, but Congress is trying to block transfers anywhere else, either to the US or overseas.

Guantanameros face more obstacles to release than Alfred Dreyfus (seen here) did on Devil’s Island.

According to The Washington Post, the Obama DoJ has decided to hold some detainees indefinitely “under the laws of war”.

So far, no one at Guantánamo has had that privilege – none has had the Article 5 hearing required by the Geneva Conventions and US military regulations to see if he is entitled to PoW status.

Absent these hearings detainees are presumed to be PoWs, a treatment denied to Guantánamo inmates for eight years.

The Miami Herald says the same DoJ decision recommends criminal or commission trials for 35 of the detainees.

The “Bali bomber” Hambali is among those being considered for trial in the US although Indonesia has sought his extradition.

Some Australians question the wisdom of a US trial where tainted (torture) evidence could cause the case to be thrown out.

* * *

It was thought that three Gitmo detainees who died the night of June 9, 2006 had been suicides.

That was the Navy’s conclusion.

However, when the Pentagon’s censored report was analysed in a Seton Hall Law School study (caution, 18 MB), many questions were raised.

Emptywheel has more.

Now there is a sensational Harper’s story by Scott Horton (pic) on these “suicides” in which evidence of new witnesses raises the possibility that the deaths occurred outside the cell blocks at a nearby secret interrogation site operated by the CIA or Joint Special Operations Command.

Slate’s Dahlia Lithwick can’t understand why this political and legal bombshell is being ignored by most of the media, although one major newspaper has called for a special prosecutor to investigate.

* * *

Daniel Popeo of the Washington Legal Foundation, a Republican think-tank, warns that “legal activism” – i.e. a court trial – “aids terrorists”.

Mr Popeo naturally supports the notion that the underpants bomber, Umar Farouk Abdulmutallab, should face a military commission, an idea Joanne Mariner scorns.

There is one court decision, however, that Daniel Popeo cites with approval – the opinion in Al-Bihani v Obama, where two of the most primitive (Bush-appointed) members of the DC Circuit have ruled that the laws of war don’t apply to war, i.e. to restrain a president in detentions – a curious result since the law of war, as expressed in treaties, is part of American domestic law.

Scotusblog, the National Law Journal and Emptywheel blog have more.

Judge Janice Rogers Brown seemed to say that during war, the law of war must give way to presidents, although the Supreme Court has repeatedly ruled otherwise, and the Obama administration, renouncing the Bush position, specifically argued that the law of war applied to executive detentions.

While Judge Brown (pic) was discovering a new doctrine not sought by the government, the Obama administration was busy inventing another government privilege, equally abstruse and unknown to law.

Ahmed Ghailani, the indicted USS Cole bomber facing trial in New York after being wilfully withheld from the court for five years, has been seeking dismissal for failure to provide a speedy trial (see my earlier post).

The New York Times has more.

The DoJ, in response, is claiming a new right to detain government-designated “intelligence assets” which somehow cuts across the right to a speedy trial.

Never mind that the Supreme Court said in Hamdi in 2004 – the very year Ghailani was captured – that prisoners can’t be held just to quiz them.

Sadly, a DoJ filing in the Ghailani case adopts the entire range of extralegal claims made by George Bush.

* * *

The briefs are in for John Yoo’s 9th Circuit appeal in Padilla v Yoo, the civil torture case brought by José Padilla against George Bush’s torture architect, and Padilla’s brief is a cracker.

Yoo’s latest law review defence of his dubious legal scholarship has been meanwhile demolished by Emptywheel.

Coincidentally, the appeal of Padilla against his civil terrorism conviction in Miami has now reached the 11th Circuit, where his arguments are likely to resemble those of Ahmed Ghailani.

From Roger Fitch and our friends down under at Justinian

2009-11-20T09:50:00.001-08:00

Roger Fitch Esq • November 13, 2009

Our Man in Washington

Gitmo closure looms … FBI releases documents on extraordinary rendition … Rendition lawsuits bogged down in US courts … All’s well that ends well for Ali Al-Marri

The Congressional Research Service has a report out on the legal issues involved in closing Guantánamo.

Strange, that a prison never authorised by Congress in the first place should be so hard to shut down.

The Attorney General, Eric Holder, is expected to announce by November 16 which detainees will be sent to the US for trial in civil courts and which will be tried in “reformed” military commissions.

If commissions are used, Obama will have to rely on the few Military Commissions Act 2009 offences that are actually war crimes.

That doesn’t include “material support for terrorism,” invented by the Bush Pentagon and used to “convict” David Hicks, Hamdan and al-Bahlul.

As I reported August 5, the Obama administration has disowned the “material support” offence, and tried – unsuccessfully – to have it omitted from the new MCA.

Joanne Mariner has more on these commissions.

* * *

The AG has announced a new policy on state secrets, used regularly to exterminate cases against the government and others, e.g. telcos, even though the Classified Information Procedures Act (CIPA) adequately protects sensitive evidence.

As predicted, the policy “change” was a prelude to government wriggles in two cases, the East Coast’s Horn v Holder and the West Coast case of Mohamed v Jeppesen Dataplan.

The Horn case involves illegal government spying, while the Jeppesen case is about extraordinary rendition and proxy torture.

Sure enough, the government decided to pay $3 million to Richard Horn to settle claims it eavesdropped in Burma on this drug enforcement agent.

That settlement followed a decision by DC district court judge Royce Lamberth gutting the government’s case.

The settlement is all part of a Machiavellian DoJ plan, designed to maintain the unlawful powers Bush acquired.

Paying off plaintiffs at $3 million a pop, however, could prove costly.

The Legal Times Blog has more.

The government now hopes to get Judge Lamberth to withdraw his rulings against the it in the Horn case – in the settlement agreement, the plaintiff agrees not to oppose the government’s motion for vacatur of Judge Lamberth’s orders.

The blogs at Legal Times and Firedoglake explain.

Judge Lamberth’s rulings have already been cited by plaintiffs in the West Coast Al Haramain case, and their amicus in Horn opposes the vacatur.

DoJ state secret claims now smugly recite, “We are not invoking this privilege to conceal government misconduct or avoid embarrassment, nor are we invoking it to preserve executive power”.

Emptywheel blog comments.

* * *

The government won a state secrets victory of sorts in the 9th circuit, which has ordered a rehearing of a decision rejecting that defence in the Jeppesen (Boeing) rendition case.

At the same time, the government’s claim that extraordinary rendition is a state secret received a setback this month when the FBI provided the ACLU with documents about its involvement in Guantánamo interrogations.

A 2002 memo, sent to the FBI legal counsel by a supervisory agent at Gitmo, was among documents released.

It analyses all of the Bush administration’s interrogation techniques and concludes that 10 of them “are not permitted by the US Constitution”, and that information obtained through them “will not be admissible in any criminal trial in the US”. Several also violated the Torture Statute.

The memo describes the ultimate interrogation category – rendition:

“Detainee will be sent off GTMO, either temporarily or permanently, to Jordan, Egypt, or another third country to allow those countries to employ interrogation techniques that will enable them to obtain the requisite information.” (my emphasis)

That’s clear enough. Or as the FBI commented:

“In as much as the intent of this category is to utilize, outside the US, interrogation techniques which would violate 18 USC s 2340 if committed in the US, it is a per se violation of the US Torture Statute. Discussing any plan which includes this category, could be seen as a conspiracy to violate 18 USC 2340. Any person who takes any action in furtherance of implementing such a plan, would inculpate all persons who were involved in creating this plan. This technique can not be utilized without violating US Federal law.”

Daphne Eviatar (pic) has more.

With rendition lawsuits bogged down in both the US and the UK, it was left to Italy to do the right thing as a court in Milan convicted 23 US citizens, mostly CIA agents, of a 2003 kidnapping in that country.

The Washington Post has more.

Scott Horton comments on the likely consequences, and the LA Times bravely praises the decision.

* * *

There’s been a disappointing result in the most notorious rendition case, that of Maher Arar.

In a sua sponte full court rehearing, the 2nd circuit ruled 7-4 that the Canadian has no remedy for the wrong committed against him when he was seized by the US at JFK airport and sent to Syria for torture.

In a 180 page decision, two-thirds of it dissents, the court divided along party lines with one apostate on each side.

The seven judges in the majority were all appointed by Bushes with the exception of one Clinton man.

The four minority judges were all appointed by Clinton, save one George Bush appointee who was once a Clinton-appointed district court judge.

Three Clinton appointees didn’t participate.

Glenn Greenwald and Scott Horton comment.

* * *

It was October four years ago when I first wrote about Ali Al-Marri.

At that time his case looked to be one of the major outrages in US legal history. Now all has ended well.

Rather than suffer indefinite military detention, US resident Al-Marri was convicted in a real federal court and sentenced to eight years.

With good behaviour, he could be out in five years.

The judgment is here.

Unlike José Padilla, the US citizen held in domestic military detention before being handed over for civil trial, Al-Marri received credit for brig time and brig mistreatment.

From Roger Fitch and our friends down under at Justinian

2009-11-01T06:59:00.000-08:00

Roger Fitch Esq • October 28, 2009

Our Man in Washington

A few big cases get a hearing despite US Supremes’ shrinking docket … Latest notes from the Guantánamo turnstile … Government dismayed at decision to extend habeas to US prisoners held in Afghanistan jails … Obama’s “terror” policy looks strikingly similar to George Bush’s

The new Supreme Court of the UK opened this month.

It has a user-friendly website and there’s even a UKSC blog patterned on Scotusblog.

US media made the doubtful claim that the new British court was modelled on the old American one, but is there really so much to admire?

Our court has a narrow, shrinking docket of around 80 cases out of 8,000 petitions.

At the start of its October term, it declined to hear 2,000 cases.

The US cable network CSPAN just published a poll on what Americans know about the court.

It’s not a lot.

Fifty-two percent didn’t know the CJ had to be a lawyer.

Despite these flaws, major constitutional cases have been accepted.

For example, Sullivan v Florida, which considers that state’s sentences to life without parole for children.

Joe Sullivan was 13-years-old and committed no murder.

There will also be important “national security” cases.

Despite Mr Obama’s efforts to moot the appeal of the Guantánamo Uighurs, Kiyemba v Obama, this crucial case will be heard by the Supreme Court.

The court will also likely hear the Kiyemba II case.

The government’s appeal of the “torture photos” case, however, will probably not proceed.

A new law allows the Defence Secretary to block the release of uncongenial photos regardless of FOI regulations.

Videos of animal torture are another matter.

US v Stevens, one of four big cases profiled by Liliana Segura, has already been argued before the Supreme Court .

* * *

The oral argument in Stevens ended up discussing human sacrifice.

That sacrifice can sometimes result from human torture and human torture remains very much in the news.

The ACLU, for example, has a dedicated Torture Report web site, and the National Security Archive has an online Torture Archive.

The Public Record, by contrast, has a handy list of 50 people suitable for war crimes prosecutions, including a number of torture abettors.

Torture is in the courts, too. Important rulings were issued on both sides of the Atlantic on the same October day.

In Washington, Judge Royce Lamberth (snap) accepted the CIA’s claims that no torture was being concealed in FOI documents sought by the ACLU.

Lamberth refused to even look at the documents in question.

While a US judge was ruling that Guantánamo detainee Khalid Sheikh Mohamed’s torture could be kept secret, a UK court ruled that the torture of former Guantánamo detainee Binyam Mohamed must be disclosed by MI5.

The Guardian has more.

* * *

By flouting the orders of the presiding Guantánamo judge, Thomas Hogan (pic), Obama’s lawyers have drawn a contempt motion.

Slate has an article on other DoJ obstructions, e.g. that of decisions by habeas judges who ordered the release of Guantánamo prisoners.

A few of these rulings have been implemented.

In my last post I reported that two Kuwaitis had been ordered released by Judge Colleen Kottar-Kotelly and how the Obama administration had done nothing to repatriate them.

The return of the Kuwaitis is sought by their government so there is no impediment to their return.

On October 8, one of the Kuwaitis, Khalid Al-Mutairi, was sent home, although the Pentagon continues to ignore the court’s order for the other man, Fouad Al-Rabiah.

Now Al-Rabiah’s lawyers have filed contempt charges against the Secretary of Defence and the Guantánamo commander.

The motion is here.

Mr Obama also obeyed a court order for the release of a Yemeni feared radicalised by US mistreatment.

Another Guantánamo decision has also been followed – the order of Judge Rosemary Collyer for the release of video tapes in Al-Qahtani.

The DoJ provided a letter to Collyer admitting to the existence of this torture evidence, already conceded in the ACLU’s FOI.

Al-Qahtani, you may recall, is the detainee whose “war crimes” case was dismissed by the Military Commissions’ Convening Authority, Susan Crawford, on the basis that torture had occurred.

ProPublica has Guantánamo updates here, and here.

Guantánamo’s civilian lawyers are fighting their own battle against the government.

Tom Wilner is suing the National Security Administration on behalf of 23 lawyers whose communications were monitored.

An appeal is underway in the 2nd Circuit.

* * *

In the recent Al Maqaleh case (see my April 13 post), Judge John Bates (pic) extended habeas to prisoners the US brings from other countries and jails in Afghanistan.

The decision is on appeal in the DC circuit.

In a Bush-like feint to help its appeal, the government promised new rights for Bagram prisoners.

The Pentagon claims the procedures resemble a Geneva “Article 5” hearing (AR190-8 under the US Army regs), but it’s really nothing more than a restaging of the discredited Combat Status Review Tribunals from Guantánamo.

Lawyers for the Bagram detainees can detect no change of policy.

The ACLU has meanwhile sued the CIA and Pentagon for a response to its FOI request for Bagram documents, e.g. the identity and nationality of prisoners.

Jurist has more.

* * *

It’s not only Bagram where Mr Obama’s “terror” policy mimics George Bush.

ProPublica has compiled a revealing comparison of Bush and Obama “counter-terrorism” approaches.

Daphne Eviatar finds Obama tracking Bush in the torture cases, while Firedoglake blog sees a similar Bush echo in Obama’s “new” state secrets policy.

Both the New Statesman and the New York Times have commented on the converging policies of Barack Obama and George Bush.

* * *

The university town of Amherst, Massachusetts, has offered to take two Guantánamo detainees – the Russian Ravil Mingazov, a former ballet dancer, and the Algerian Ahmed Belbacha, a former UK resident.

Neither can return safely to his home country and Belbacha is the only former UK resident refused by the British.

Perhaps Amherst wants to atone for the sins of its namesake, Field Marshal Jeffery Amherst, (1717-1797).

Baron Amherst (pic) was a prescient and early advocate of biological warfare, reputedly supporting the practice of giving smallpox-infected blankets to the native Americans.

Hold Gates in Contempt...

2009-10-13T11:30:00.000-07:00

U.S. District Judge Colleen Kollar-Kotelly on September 17, 2009, ordered the U.S. Government to release Al Rabiah “forthwith.” Yet, three weeks later, the U.S. Government has refused to comply with the judge’s order.

“Because Respondents [Secretary of Defense Robert Gates and Rear Admiral Tom Copeman] have made clear that they will not comply with the Release Order voluntarily, civil contempt is an appropriate remedy,” the attorneys wrote in a motion filed today with U.S. District Court for the District of Columbia. Rear Admiral Tom Copeman is the current commander of Joint Task Force Guantanamo.

Gates and Copeman “have made clear that they will do nothing to comply with Al Rabiah’s Release Order unless and until they are forced to do so by the Court,” the attorneys wrote in an accompanying memorandum. “In defiance of the Release Order, Respondents have failed to take any steps to facilitate Al Rabiah’s release and have no justification for this failure.”

The attorneys note in the court documents that the Government of Kuwait has repeatedly requested Al Rabiah’s prompt repatriation. “Al Rabiah could and should have been returned to Kuwait at the same time, and on the same aircraft, as Petitioner Khalid Al Mutairi, who was finally returned to Kuwait on October 8, 2009,” they wrote.

Fouad Al Rabiah has been held at Guantanamo for nearly eight years, during which he was subjected to abusive and coercive interrogation methods. His attorneys and the Government of Kuwait for years sought for him a hearing before an impartial judge independent of the U.S. Administration to ensure due process. That hearing finally took place on August 26, 2009, and on September 17, 2009, the court ordered his release.

Al Rabiah, 50, has an established history of international relief work. In October 2001, he was in Afghanistan coordinating delivery of more than 30 trucks of aid supplies from Meshad, Iran, to refugees on the Afghani-Iranian border and to hospitals in Kandahar. Since 1981, Al Rabiah has been a manager for Kuwait Airways and a father of four children.

Al Rabiah is the second Kuwaiti detainee to be ordered released following last year’s historic Supreme Court ruling that granted fair hearings to the detainees. Judge Colleen Kollar-Kotelly on July 29, 2009, ordered the release of Kuwaiti detainee Khaled Al Mutairi who was returned to the Government of Kuwait on October 8, 2009.

About the Kuwaiti Family Committee:

The Kuwaiti Family Committee’s mission is to seek justice for the remaining Kuwaiti detainees at Guantanamo Bay. The organization is led by Khalid Al Odah, the father of Guantanamo detainee Fawzi Al Odah, and includes in its membership approximately 100 relatives of the prisoners. They are only asking for due process of law for their fathers, brothers, and sons, including speedy proceedings either to release them or to charge and try them in a fair process.

From Roger Fitch and our friends down under at Justinian

2009-10-05T12:57:00.000-07:00

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.

FindLaw’s Writ has more on Davis and the 4th circuit.

Legal Times has a report on the Bill to add new judges to the circuit courts.

* * *

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.

Scott Horton has more and Salon had the dope on the Republican activist Silberman as far back as 2004.

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.

McClatchy News has more on Kiyemba I, while Andy Worthington reports the significance of the DC Circuit’s Kiyemba II mandate.

The first of only eight habeas cases lost on the merits by Guantánamo detainees is now on appeal to the DC circuit, while the government is appealing a few of the 30 it has lost.

* * *

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.

Scotus Blog and the Miami Herald have more.

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.

Here’s the opinion.

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.

Scotusblog has more.

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.

Scotus Blog has more.

The court deferred consideration.

Judge Henley had earlier declined to let the military lawyers inspect the particular torture dungeon where bin al-Shibh was held and had denied access to interrogation techniques.

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.

Fitch

2009-09-04T08:13:00.000-07:00

While Obama battles in three courts to keep secret the Bush CIA’s abductions, he has begun his own renditions and actively defends the extralegal practice.

In one respect, however, Barack Obama has parted company with Bush – occasionally he obeys court orders.

During August he obeyed two of them.

First, there was the order for release of the Guantánamo detainee Mohammed Jawad by DC district court judge Ellen Huvelle (see my post of August 5).

Daphne Eviatar thought that the government’s capitulation might be due to revelations that it had paid witnesses.

Or perhaps it was the possibility that Jawad was a child of 12 when arrested rather than the 17-year-old the government had claimed, relying on the Pentagon’s now-dubious bone scans.

Despite Judge Huvelle’s (pic, centre) order that Jawad be treated humanely, he was shackled and degraded to the last and his military lawyers only narrowly prevented his delivery to an Afghan prison.

He’s now considering a civil suit for damages.

Scotus Blog and Democracy Now have more.

In another law-abiding breakthrough, Obama finally obeyed the order, by New York district court judge Alvin Hellerstein, for the release to the American Civil Liberties Union of the CIA Inspector General’s 2004 report on the torture program.

Also released were Office of Legal Counsel documents from the Department of Justice here and here.

The ACLU explains the significance and Yale law prof and blogger Jack Balkin comments here.

The now-retired author of the CIA report, John Helgerson, is not happy with the many redactions.

For one thing, the names of those who were disappeared or tortured to death are omitted.

Nonetheless, the document dump, courtesy of the ACLU, has been a goldmine.

The New York Times excerpted the torture protocol Guidelines for Interrogators, and The Public Record latched onto the rendition procedures in a background paper that also described interrogation techniques.

Emptywheel Blog was quick to extract the most interesting Office of Legal Counsel nuggets, including a previously unreleased torture opinion by the odious Steven Bradbury (pic), hastily thrown together in 2006 after the Supreme Court affirmed that Common Article 3 applied to all detainees in US custody.

Bradbury’s opinions were mostly directed to CIA general counsel John Rizzo.

For years these gentlemen acted in their respective positions as head of OLC and CIA general counsel, because the Senate never had the stomach to confirm them.

In his 2006 opinion, Bradbury cheerfully parrots back the CIA’s claims that its secret prisons rigorously comply with Common Article Three’s prohibitions against cruel, inhuman and degrading treatment.

Bradbury finds everything – violence to the person, blindfolding, indefinite solitary confinement, persistent white noise, 24-hour lighting of cells, shackling – easily squared with the Geneva Conventions.

After all, he said, “While shackled, detainees are able to walk comfortably. Used in this limited and carefully calibrated way, shackling does not violate Common Article 3”.

And so on, for all techniques.

The Washington Independent has more on this memo, which could still be in effect today.

Another of Bradbury’s memos, dated July 20, 2007, gave the CIA guidance on black site interrogations then taking place 10-months after Mr Bush claimed he had closed all secret prisons.

Any suggestion of good faith in the preparation of these memoranda or the CIA’s reliance upon them vanishes when we learn that Bradbury provided hands-on advice, apparently mid-torture, on the treatment of a particular detainee and here and here again.

Emptywheel blog noticed the suspicious exchange of hand-carried, unsigned and undated “legal” notes – presumably the way things are done in other criminal enterprises, e.g. the mafia.

As Emptywheel also discovered, the actual document “Legal Principles Applicable to CIA Detention and Interrogation of Captured Al-Qa’ida Personnel” is nowhere to be found in the I-G’s CIA report.

A draft list of legal techniques is provided.

As the New York Times notes the ACLU documents show tight CIA control over every aspect of the (illegal) interrogations.

Happily, Obama has given the responsibility for future (illegal) interrogations to a non-CIA unit, but one still under an ex-CIA official, John Brennan.

Earlier this year, Mr Obama had to abandon Brennan’s appointment as CIA director for fear the Senate would never confirm him due to his association with CIA interrogations under George Bush.

The I-G’s CIA report contained a laundry list of examples of war crimes and tortures inflicted by the Bush administration on those classified as enemies.

One of them was the threatened murder of the children of Khalid Sheikh Mohammed (seen here).

One wonders if similar threats of death to the first-born son were made by operatives of the Bush mafia against independently-minded DC judges.

Some judges, after initial outbreaks of courage, lost their nerve – e.g. James Robertson of Hamdan fame.

Robertson stopped the first Hamdan military commission, but allowed the second, equally invalid one, to go ahead.

In fact, this month Judge Robertson saw fit to deny habeas to a one-legged man taken prisoner in a hospital.

The CIA report also has an appendix called “Draft Guidelines on Medical and Psychological Support to Detainee Interrogations”, which should be particularly relevant for the accreditation boards of doctors and psychologists.

Unfortunately, the most interesting parts are blacked out.

Following the release of the CIA report Attorney General Eric Holder announced, as predicted, an extremely limited (only “excessive” waterboarding will be reviewed) inquiry into the CIA’s crimes.

No one now recalls that water torture, whether “excessive” or not, has always been illegal.

Dahlia Lithwick wonders if half an investigation is worse than none, but for the Wall Street Journal even Holder’s limited inquiry is too much.

HR 3326

2009-08-06T08:40:00.001-07:00

H.R.3326, Department of Defense Appropriations Act, 2010

(Also note, 8/3/2009: Received in the Senate and Read twice and referred to the Committee on Appropriations.)

Sec. 8119. (a) None of the funds made available in this or any prior Act may be used to release an individual who is detained, as of April 30, 2009, at Naval Station, Guantanamo Bay, Cuba, into the continental United States, Alaska, Hawaii, the District of Columbia, or any of the United States territories of Guam, American Samoa (AS), the United States Virgin Islands (USVI), the Commonwealth of Puerto Rico and the Commonwealth of the Northern Mariana Islands (CNMI).

(b) None of the funds made available in this or any prior Act may be used to transfer an individual who is detained, as of April 30, 2009, at the Naval Station, Guantanamo Bay, Cuba, into the continental United States, Alaska, Hawaii, the District of Columbia, or any of the United States territories of Guam, American Samoa (AS), the United States Virgin Islands (USVI), the Commonwealth of Puerto Rico and the Commonwealth of the Northern Mariana Islands (CNMI), for the purposes of detaining or prosecuting such individual until 2 months after the plan detailed in subsection (c) is received.

(c) The President shall submit to the Congress, in writing, a comprehensive plan regarding the proposed disposition of each individual who is detained, as of April 30, 2009, at Naval Station, Guantanamo Bay, Cuba, who is not covered under subsection (d). Such plan shall include, at a minimum, each of the following for each such individual:

(1) The findings of an analysis regarding any risk to the national security of the United States that is posed by the transfer of the individual.

(2) The costs associated with not transferring the individual in question.

(3) The legal rationale and associated court demands for transfer.

(4) A certification by the President that any risk described in paragraph (1) has been mitigated, together with a full description of the plan for such mitigation.

(5) A certification by the President that the President has submitted to the Governor and legislature of the State or territory (or, in the case of the District of Columbia, to the Mayor of the District of Columbia) to which the President intends to transfer the individual a certification in writing at least 30 days prior to such transfer (together with supporting documentation and justification) that the individual does not pose a security risk to the United States.

(d) None of the funds made available in this or any prior Act may be used to transfer or release an individual detained at Naval Station, Guantanamo Bay, Cuba, as of April 30, 2009, to the country of such individual's nationality or last habitual residence or to the freely associated States of the Federated States of Micronesia (FSM), the Republic of the Marshall Islands (RMI), or the Republic of Palau, or to any other country other than the United States, unless the President submits to the Congress, in writing, at least 30 days prior to such transfer or release, the following information:

(1) The name of any individual to be transferred or released and the country to which such individual is to be transferred or released.

(2) An assessment of any risk to the national security of the United States or its citizens, including members of the Armed Services or the United States, that is posed by such transfer or release and the actions taken to mitigate such risk.

(3) The terms of any agreement with another country for acceptance of such individual, including the amount of any financial assistance related to such agreement.

FYI, from 111-230 DEPARTMENT OF DEFENSE APPROPRIATIONS BILL, 2010 REPORT of the COMMITTEE ON APPROPRIATIONS [to accompany H.R. 3326]:

The Committee on Appropriations submits the following report in explanation of the accompanying bill making appropriations for the Department of Defense, and for other purposes, for fiscal year ending September 30, 2010.

GUANTANAMO BAY NAVAL BASE

The Committee has not provided the $100,000,000 requested to support the relocation and disposition of individuals detained at the Guantanamo Bay Naval Base. The Department of Defense is still awaiting a decision by the Administration on the future of the detention facility at Guantanamo Bay, and these funds are not needed at this time...

ADDITIONAL VIEWS OF REPRESENTATIVES JERRY LEWIS AND C.W. BILL YOUNG ON THE FISCAL YEAR 2010 DEFENSE APPROPRIATIONS BILL

GUANTANAMO BAY

This January, the President signed the executive order to close the Guantanamo Bay Detention Facility. More than five months later there is still no evidence of a plan to carry out this order, and there has been no consultation with the Congress. In fact, just this week the Administration announced that they are extending their Detention Policy Task Force for another six months, because they were not able to sort it all out within the President’s timetable. Despite these difficulties, the suspected plotter of the 1998 Embassy bombings in Africa has already been moved to New York to face trial. The Government of Palau has announced that they will accept some Uighur detainees, and press accounts linked that action to a $200 million payoff by the U.S. Government that the State Department will not confirm or deny. Finally, four Uighur detainees have already been released to Bermuda. Congress and the American public found out about these actions and diplomatic efforts after the fact.

And there is more—detainee transfers have also been made to Saudi Arabia, Chad, and Iraq. We have heard rumors about deals with Yemen, Italy, and Albania. All of this is being done without an assessment of the risks to American people at home and abroad, or an assessment of risk to our U.S. forces, especially since the detainees at Guantanamo include the perpetrators of some of the most horrific terrorist acts against Americans, including 9/11, the USS Cole bombing, and the Embassy bombings in Africa.

Director Mueller of the FBI testified to Congress that bringing these detainees to the U.S. poses risks to national security, including providing financing, radicalizing others, and undertaking attacks in the U.S. Additionally, the Department of Defense has reported that at least 14 percent of former Guantanamo detainees have returned to terrorist activity. This Administration is ignoring or disregarding those risks, and they continue to stonewall the Congress. We need to stop the Administration from rushing to transfer or resettle detainees simply to fulfill a campaign promise.

We commend Chairman Murtha for the inclusion of Ranking Member Lewis’s Guantanamo language in the Managers Amendment. This language, which contains the same requirements in the Commerce/Justice/Science bill that prohibits release or permanent transfer of detainees to the U.S. and requires a risk assessment prior to any transfer for purposes of prosecution, and the language in the Interior bill that expands those restrictions to U.S. territories, has enjoyed bipartisanship support during the Fiscal Year 2010 Appropriations Process. It ensures that the Administration cannot act unilaterally and ignore the concerns of the Congress on such an important matter.

Language re: Guantanamo Detainees in H.R.2847, the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2010 (Passed by House - the Senate version does not include this language)

Sec. 532. (a) None of the funds made available in this or any prior Act may be used to release an individual who is detained, as of April 30, 2009, at Naval Station, Guantanamo Bay, Cuba, into the continental United States, Alaska, Hawaii, or the District of Columbia.

(1) The findings of an analysis regarding any risk to the national security of the United States that is posed by the transfer of the individual.

(2) The costs associated with not transferring the individual in question.

(3) The legal rationale and associated court demands for transfer.

(4) A certification by the President that any risk described in paragraph (1) has been mitigated, together with a full description of the plan for such mitigation.

(5) A certification by the President that the President has submitted to the Governor and legislature of the State to which the President intends to transfer the individual a certification in writing at least 30 days prior to such transfer (together with supporting documentation and justification) that the individual does not pose a security risk tot he United States.

(d) None of the funds made available in this or any prior Act may be used to transfer or release an individual detained at Naval Station, Guantanamo Bay, Cuba, as of April 30, 2009, to the country of such individual's nationality or last habitual residence or to any other country other than the United States, unless the President submits to the Congress, in writing, at least 30 days prior to such transfer or release, the following information:

(1) The name of any individual to be transferred or released and the country to which such individual is to be transferred or released.

(3) The terms of any agreement with another country for acceptance of such individual, including the amount of any financial assistance related to such agreement.

update

2009-07-24T13:25:00.000-07:00

Al-Ghizzawi is now allowed to spend some time with his fellow prisoners, some time watching movies, and he can attend some language classes (English). My other client, Razak Ali, has always been in Camp 4-one of the “better” camps at Guantanamo and he has never had the serious health and psychological problems that come with being held in solitary confinement…for literally years. That being said…these years have been very hard for both men.

Their cases are slowly working through the system. Razak Ali’s case was delayed because his original judge had a heavier caseload of Guantanamo cases than the other judges. His case was moved to a different judge and despite the “justice” departments attempts to do everything it can to delay his case it is slowly moving ahead. In Al-Ghizzawi’s case I agreed to a temporary stay of his case so that the Obama Review Team could review his situation. Now that it is clear that the Obama administration is unwilling or unable to move the men that need diplomatic resettlement help I have asked the judge to lift the stay and set a hearing date for his Habeas petition.

Both men have now started their eighth year at Guantanamo. Neither man will ever be charged with wrongdoing. The same people who ran this litigation for the Bush administration are running things for the Obama administration. Those bright attorneys that Obama put into place and which gave some of us great hope for a change are standing like deer in the headlights. It reminds me of the old saying that being smart will only get you so far..or as the kids say “no guts, no glory.” There is definitely a shortage of guts.