Appellate Motion

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT


ABDUL HAMID AL-GHIZZAWI
Detainee,
Guantanamo Bay Naval Station
Guantanamo Bay, Cuba;
Civil Action No. 06-5394 and 08-5136

Petitioner,
v.

GEORGE W. BUSH, et al.,

Respondents.





MOTION FOR INJUNCTION TO MAINTAIN STATUS QUO BY COMPELLING PROVISION OF LIFE-SAVING MEDICAL TREATMENT AND FOR EXPEDITED BRIEFING ON THE MERITS

__________________





Submitted this 11th Day of July, 2008.




I. INTRODUCTION
Petitioner-appellant Abdul Hamid Al-Ghizzawi ("Al-Ghizzawi"), who has been held prisoner at the United States military's Guantánamo Bay detention facility since approximately March 2002, brings this emergency application to this Court in the hope that he will not die or be irremediably incapacitated as a result of what he contends is deliberate medical neglect at the hands of the United States military so that he may exercise his now recognized Constitutional right to challenge the unlawfulness of his detention (Boumediene v. Bush, 553 U.S. ___; 2008 WL 2369628; 2008 U.S. LEXIS 4887 (2008) __U.S.__,) while that right is still meaningful.
Beginning sometime in 2004 Al-Ghizzawi’s health began to deteriorate. During the course of this litigation the government has admitted that Al-Ghizzawi suffers from both Hepatitis B and tuberculosis. Al-Ghizzawi filed motions on two separate occcasions with the District Court seeking medical treatment and his medical records. Both motions were denied. Al-Ghizzawi appealed the initial ruling and that appeal has languished these more than eighteen months without even a briefing schedule by this Court (06-5394). In the aftermath of Boumediene, and given the ongoing deterioration of his physical and mental well-being, Al-Ghizzawi respectfully moves this Court for an Order granting him an emergency affirmative injunction to compel the United States Government to provide him medical care and to provide his complete medical file to his counsel in order to enable his counsel to provide adequate representation in these proceedings, such relief is necessary to preserve the status quo, to wit, that Al-Ghizzawi not suffer death or permanent incapacity as a result of the lack of medical care during the pendency of his proceedings.
The District Court (BATES, J.) denied Al-Ghizzawi’s most recent Motion for Medical Records and Medical Care disregarding without comment the affidavits of Al-Ghizzawi, his counsel and Al-Ghizzawi’s medical expert (Dr. Juerg Reichen of Switzerland,a world-renowned hepatologist, or liver specialist) and without even seeing the need to review the medical records in camera before declining to order access to them. Instead the District Court uncritically accepted as true the statements from the Guantanamo medical staff despite the fact that the medical staff contradicted themselves in several important details and the fact that their account was expressly contradicted by Al-Ghizzawi’ presentation. The District Court inappropriately blamed Al-Ghizzawi for his own medical problems in holding “To be candid, then, if Al-Ghizzawi is currently suffering any harm from his medical condition, it is largely self inflicted.” (Slip opinion at 13) This statement purports to blame Al-Ghizzawi’s severe medical condition on a man who has been unlawfully, unjustly and arbitrarily held prisoner by the United States government for the last six and a half years in abysmal conditions, but this very statement also underscores the fact that the District Court did not conduct a proper inquiry as to whether or not Al-Ghizzawi is “suffering any harm.” It is time for this Court to correct the District Court's neglect on this point.
II. STATEMENT OF FACTS
Petitioner-appellant Al-Ghizzawi has been held for more than 6 ½ years at Guantanamo despite the fact that he was initially found to NOT be an enemy combatant in his first CSRT. A "do-over" CSRT was promptly ordered by the Pentagon and, as explained in a contemporaneous government email, an inculplery search was ordered to find reasons to continue to hold Al-Ghizzawi (and several other men also found to be non-enemies). As the email explained:
This does not justify making a change in and or (sic) itself
but is a filter by which to look …..By properly
classifying them as EC, then there is an opportunity
to (1) further exploit them here in [G] TMO and (2)
when they are transferred to a third country, it will
be controlled transfer in status..

Al-Ghizzawi’s case also brings forth the extraordinary additional fact that a member of his first CSRT panel, the panel that found A1-Ghizzawi to not be an enemy combatant included panel member Lt. Col. Stephan Abraham. Lt. Col. Abraham provided an affidavit to the Supreme Court in June 2007 in that Petitioner’s successful Motion to Reconsider the denial of Certiorari in Boumediene v. Bush,---- S.Ct.---,, 2007 WL 1854132, 75 USLW 3705, 75 USLW 3707 (U.S. Jun 29, 2007) (NO. 06-1195). In his affidavit Lt. Col. Abraham described not only the failed CSRT process and the pressure put on the CSRT panels to find the prisoners “enemy combatants” but he also described in detail the only panel that he sat on (panel 23) and the paucity of evidence against that specific detainee, Al-Ghizzawi, a man for whom there was clearly no evidence that he was an enemy of the United States and no evidence whatsoever that he had any connection to either al-Queda or the Taliban, petitioner-appellant herein. Lt. Col. Abraham mistakenly thought that Al-Ghizzawi had been released after the panel’s unanimous finding of the complete lack of any evidence that Al-Ghizzawi, was an enemy combatant or a threat to the United States and Lt. Col. Abraham did not know until July 2007 that Al-Ghizzzawi had been subjected to a do-over CSRT (based on the same evidence Lt. Col. Abraham’s panel rejected) and remained at Guantanamo.
Al-Ghizzawi was one of the prisoners who desperately wanted legal assistance because he believed that once a court saw the circumstances under which he was kidnapped and turned over to the American forces for bounty, and the complete lack of evidence to link him to terrorism or any hostility to the United States, he would be promptly returned to his wife and now seven year old daughter. Counsel volunteered to represent Al-Ghizzawi in 2005 and, although he was quite ill even at that time, he was actively engaged in the legal process and had been a great help to his counsel. However, in December 2006 Al-Ghizzawi was moved to the solitary confinement of Camp 6 and as a result of being placed in camp 6 Al-Ghizzawi’s physical and mental deterioration has been acute and precipitous.
Due to the ongoing and worsening physical and mental deterioration of Al-Ghizzawi it has become difficult for Al-Ghizzawi to continue to help his attorney in a meaningful way or to concentrate on his legal efforts and assist in his own case, lest the irony of the man whose own personal injustice led the Supreme Court to confirm this nation's commitment to habeas corpus dying of medical neglect at the hands of his unlawful captors become a sad reality. Without question, justice delayed any longer will truly be justice denied.
III. MEDICAL BACKGROUND
According to the then Chief Medical Doctor at Guantanamo, Dr. Ronald Sollock , in affidavits submitted to the District Court in September 2006, Al-Ghizzawi was subjected to complete medical tests by the military upon his entry at Guantanamo in 2002 and that Al-Ghizzawi entered in good health and was in good health at the time the affidavit was filed. That good health included the diagnosis of a history of Hepatitis B which was identified in tests performed in August 2002 and the fact that Al-Ghizzawi acquired Tuberculosis in 2004 while at the base. Al-Ghizzawi however was never told of the diagnosis by the military (it fell to his counsel to inform him of the diagnosis after Dr. Sollock’s affidavit was filed with the Court). In that same self-serving affidavit, the military described the medical facility at Guantánamo in misleadingly positive terms, but tellingly, also admitted that Al-Ghizzawi has never been treated for any of his life threatening medical conditions. At the same time that the doctor claimed Al-Ghizzawi was in good health he contradictorily justified the unconscionable neglect regarding Al-Ghizzawi’s serious medical conditions by falsely claiming that Al-Ghizzawi did not want to be treated, a disputed proposition that the District Court uncritically accepted. (Ex. A)
In response to Al-Ghizzawi’s second motion for medical care the government filed an affidavit from the new military doctor at Guantanamo, and as described further below, that affidavit contradicted the earlier affidavit submitted by Dr. Sollock in several important respects (including the admission that one of the indicators for liver damage was measurably increased as of tests done in November 2006, one month after Dr. Sollock reported that Al-Ghizzawi was in good health). To this day Al-Ghizzawi has not received any treatment for his life-threatening hepatitis B and/or his tuberculosis and counsel, as set forth in detail in her affidavit, describes the rapid and serious deterioration of Al-Ghizzawi’s health over the past year and a half. (Ex. B)
Al-Ghizzawi's counsel has attempted to visit him approximately every other month to monitor his deteriorating health in a thus far futile effort to convince his military jailers to provide him with adequate medical treatment and to move him out of the "super-max" conditions of the notoriously harsh Camp 6 where the cruel and inhumane conditions of that camp are clearly aggravating Al-Ghizzawi’s already frail state. During counsel's visit to see Al-Ghizzawi in February 2008, Al-Ghizzawi health had deteriorated to the point that his death seemed imminent. Fortunately he is still alive. Al-Ghizzawi’s mental health is also at risk because of the complete isolation he has been subjected to for more than one and a half years, in the notorious Camp 6. (Those conditions are more fully described in counsel’s affidavit Ex. B)
Even the District Court recognized the minimal intrusion in military operations to provide Al-Ghizzawi's counsel simple access to his medical records, records which could actually establish the merit-- or potentially even the lack of merit-- in Al-Ghizzawi's current application. We must ask ourselves, what is the government trying to hide?
IV. SUMMARY OF ARGUMENT
The Supreme Court has held that the Geneva Conventions are still the law of this country and if Al-Ghizzawi is to provide meaningful assistance to his counsel and, quite literally, to survive to have his habeas petition heard by a Court, a right the Supreme Court recognized as protected by the United States Constitution in Boumediene v. Bush, 553 U.S. ___; 2008 WL 2369628; 2008 U.S. LEXIS 4887 (2008) __U.S.__, and as set forth above, a right of peculiar significance to Al-Ghizzawi, whose CSRT panel “23” was the very basis of the Supreme Court’s decision to grant reargument in Boumendiene, he must be immediately provided with adequate medical treatment.

V. ARGUMENT
A. LEGAL STANDARD APPLIED BY THE DISTRICT COURT
The District Court applied the "deliberate indifference" to "serious medical needs" standard with respect to Al Ghizzawi's claims. The District Court also found that notwithstanding his allegations of serious medical neglect and potentially imminent death from a deliberate refusal to treat life threatening conditions, that this was really "only a disagreement as to medical treatment", and found no imminent harm. This standard is contrary to the standard set out in the Geneva Conventions and completely disregards the fact that Al-Ghizzawi is not a convicted criminal under our criminal justice system, or even one charged with a crime, but is a man who has been arbitrarily held without charge by the executive for more than six and one half years.
B. THE GENEVA CONVENTIONS
Despite pleas from the Executive branch, the U.S. Supreme Court refused to disregard this nation’s obligations under the Geneva Conventions in Hamdan v. Rumsfeld _ U.S. _, 126 S. Ct. 2749 (2006). Those same Conventions require adequate medical care and require the United States government to treat serious illness or injury and to ensure that where a condition necessitates special treatment, a surgical operation or hospital care, the detainee must be brought to a facility where such treatment can be given, including a civilian facility. (Convention III, Art. 30 Paragraph 2) In addition it is also required that medical inspections of internees shall be made at least once a month “to supervise the general state of health, nutrition and cleanliness of internees, and to detect contagious diseases, especially tuberculosis, malaria, and venereal diseases. Such inspections shall include, in particular, the checking of weight of each internee and, at least once a year, radioscopic examination.” (Convention IV, Art. 92) These basic medical provisions are not and have never been followed at Guantanamo and it is clear from the affidavits of Guantanamo’s medical doctors that Al-Ghizzawi--a man who the government admits suffers from tuberculosis -- has not even had a chest x-ray since August 2004.
The Guantanamo medical facility has had more than sufficient time to treat Al-Ghizzawi if it were to do so effectively, and should not be given any further opportunity to malpractice upon, if not kill him or drive him to insanity. The Guantanamo medical facility has also shown through the affidavits of its commanding officers that it will go to any lengths to hide its incompetence in diagnosing and treating Al-Ghizzawi, making it all the more imperative that Al-Ghizzawi be sent to an appropriate civilian medical facility as required by the Geneva Conventions.
Those same Geneva Conventions require the humane treatment of prisoners. Al-Ghizzawi has sat in the boredom and tedium of solitary confinement for more than eighteen months. He is in a windowless cell and his access for fresh air and natural lighting is limited to those times when he is placed in a cage set out on gravel in the blistering heat of Cuba for, approximately 2 hours during a 24 hour period (sometimes this recreational time is provided in the middle of the night). Al-Ghizzawi has not spoken to his wife or heard the voice of his young daughter for more than six and a half years. He can no longer read or write because of the deterioration of his eye sight. He has no one to talk to unless he crawls on the floor and shouts to another prisoner through the slot on the floor where the food is pushed in. With no one to talk to but himself he spends his days talking to himself and washing and rewashing his clothes in his toilet bowl. There is nothing even remotely humane about this treatment.
Although the District Court utilized an inappropriate standard of review (a standard more appropriate for convicted criminals in the criminal justice system) Al-Ghizzawi would actually be entitled to his medical records if he was a convicted criminal and sentenced to prison in the federal prison. In fact, Al-Ghizzawi and his counsel would readily be allowed access to his medical records (and probably be able to achieve something resembling competent medical care). (See, United States Department of Justice, Federal Bureau of Prisons'’s Program Statement 1351.05, section 14 (http://www.bop.gov/policy/progstat/1351_005.pdf).) (See also, Benavides v. Bureau of Prisons 995 F.2d 269, 301 U.S.App.D.C. 369 (1993)) The fact that this man who has not even been charged with a single crime, (let alone convicted and/or sentenced) cannot view his own medical records while the government knowingly withholds life sustaining medical treatment is iniquitous. (See also, Article 55 of the Uniform Code of Military Justice, prohibiting cruel and inhumane punishment, as well as the Eighth Amendment to the United States Constitution.( U.S. v. West, slip op, 2002 WL 1822417 (A.F.Ct.Crim.App. 2002) (prisoner convicted under Uniform Code of Military Justice may, if subjected to deliberate indifference in military jailer's medical treatment, state claim for 8th Amendment violation); Cushing v. Tetter, 478 F.Supp. 960 (D.R.I. 1979) (district court may consider question of whether return of service member to active duty where member may be psychologically unfit constitutes deliberate medical indifference constituting 8th Amendment violation); Article 55 of the Uniform Code of Military Justice prohibiting cruel and inhumane punishment).
C. THE DISTRICT COURT ERRED IN REFUSING TO GIVE ANY WEIGHT TO THE AFFIDAVITS PRESENTED BY PETITIONER
The District Court reviewed the affidavits from the government and the military doctors that detailed what they claimed was the care that was available to Al-Ghizzawi if only Al-Ghizzawi would avail himself of it. The District Court evidently disregarded the affidavits from Al-Ghizzawi’s side of the case, notwithstanding that Al-Ghizzawi's affidavits absolutely disputed everything the government said and that the government neglected or refused to provide the actual medical records to the District Court to demonstrate what it said was true. The District Court based its ruling solely on the unsupported and self-serving medical declarations from the military that detailed its version of the care available to Al-Ghizzawi and which inappropriately blamed Al-Ghizzawi for his own medical problems. That the doctors at Guantanamo have admitted that Al-Ghizzawi suffers from diseases that are potentially life threatening (hepatitis B and tuberculosis) and that he has not been treated for either of these conditions should have established as a per se matter that Al-Ghizzawi is not receiving adequate treatment for his life-threatening illnesses.
Al-Ghizzawi is compelled to seek immediate judicial redress from this Court to ensure that the government meets his urgent and compelling medical needs while awaiting his petition for habeas corpus to be heard. In addition, because Al-Ghizzawi is a prisoner of the United States in a facility controlled by the United States, who has not even been charged with, much less convicted of, a crime, he is entitled to the protection of the Due Process Clause. “While the convicted prisoner is entitled to protection only against punishment that is ‘cruel and unusual,’ the pretrial detainee, who has yet to be adjudicated guilty of any crime (or as in this case even charged with any crime) may not be subjected to any form of ‘punishment.’” Slade v. Hampton Rds. Terg’l Jail, 307 F.3d 243, 250 (4th Cir. 2005) (emphasis in the original). See also Youngberg v. Romeo, 457 U.S. 307, 312-22 (1982); Bell v. Wolfish, 441 U.S. 520, 535-37 (1979). Al-Ghizzawi is being subjected to the cruelest form of punishment: the withholding of life saving medical treatment.
Unfortunately, these judicial holdings will not serve Al-Ghizzawi if he is permitted to die at the hands of his jailer before he even has so much as an opportunity to be heard. Al-Ghizzawi respectfully requests that this Court grant his request for immediate access to his complete medical records that would provide a basis for Al-Ghizzawi (1) to establish the medical neglect to which he has been subjected and (2) to ensure that the medical treatment that Al-Ghizzawi so desperately needs is appropriate to his actual condition, a condition that to this day, both Al-Ghizzawi and counsel know only to the extent the government is willing to disclose. The relief requested is absolutely necessary for Al-Ghizzawi to effectively prepare his case and to quite literally allow him to live long enough to pursue his case to conclusion.


VI. CONCLUSION
Al-Ghizzawi’s right to access to his medical records and to receive immediate medical treatment is even greater than those of typical pretrial detainees. Unlike those charged with crimes, Al-Ghizzawi has been detained for more than six and a half years under the harshest of conditions and with no charge whatsoever, but instead remains incarcerated solely on the whim and caprice of the Executive. As described herein, Al-Ghizzawi’s current designation as an enemy combatant is hardly a foregone conclusion given that his first CSRT unanimously found him not to be an enemy combatant and that the evidence against him has been described, by at least one CSRT panel member, as “garbage”; the fact that the government falsely claimed that they had “new evidence” and set up a second tribunal a few weeks later undermines any legitimacy of the government’s determination that Al-Ghizzawi has engaged in hostilities against the United States, or aided those who have. This is the very core of Al-Ghizzawi’s’ underlying habeas claims. Even under the most deferential standard, published reports, many from the government’s own admissions in this case, illustrate that the government has shown that it cannot be trusted to provide even basic minimal medical care for Guantánamo detainees, and thus far, its actions have spoken for themselves in the case of Al-Ghizzawi.
For all the reasons set forth above, this Court should enter an emergency injunction to maintain the status quo by ordering the government to release Al-Ghizzawi’s complete medical file to counsel and to provide meaningful and adequate medical treatment immediately. Al-Ghizzawi respectfully suggests that the most efficient way to deal with the matters related to his medical treatment and medical records would be to name a special master to supervise these matters, to ensure that, in fact, as the District Court held without factual or legal basis, “the record is clear that adequate medical care is available and has either been provided or offered”.

Respectfully submitted,



H. Candace Gorman

scheduling order

1. Status Reports. By July18, 2008, the parties shall each file concise reports
summarizing the status of each case. If applicable, counsel involved with multiple cases (versus
multiple petitioners in a single case) may, solely for the purpose of submitting a single status
report, consolidate their cases.
2. Joint Report. By July 21, 2008, petitioners and the government shall submit a joint
report that:
A. includes a proposed amended protective order and a separate proposed
protective order for use in cases involving “high-value detainees”;
B. identifies duplicate petitions that were filed on behalf of a single individual,
and addresses which of the duplicate petitions should be dismissed;
C. identifies petitioners currently detained at Guantanamo Bay, Cuba, whose
cases were dismissed on jurisdictional grounds, and addresses whether the Court should vacate
such dismissals;
E. identifies petitioners who are cleared or authorized for release and the type of
such release—e.g., whether the petitioner is authorized for release and the government is simply
seeking a receiving country or whether the petitioner is authorized for release to detention in
another country—and addresses any objection to consolidation of such cases before one Judge of
this Court;
F. identifies all Boumediene-related motions to dismiss and motions to stay that
are still pending, and addresses whether such motions are moot;
G. identifies all pending motions that are ripe for decision, and suggests the
appropriate time to address such motions and whether they are amenable to common resolution
by the undersigned;
H. identifies the cases in which a stay was entered, and addresses whether the
Court should lift all such stays;
I. identifies the cases in which an appeal or a petition for certiorari is pending;
and
J. includes proposals on how the undersigned should conduct regular status
conferences.
K. reports on any agreement for the government to provide unclassified portions
of the CSRT records to petitioners who have had their CSRT reviews by July 31, 2008.
3. Simultaneous Briefing on Procedural Framework Issues. By July 25, 2008,
counsel for petitioners and the government shall each file one brief addressing the following
issues relating to the procedural framework in which these cases will be resolved and whether
such issues are amenable to common resolution:
A. the scope of discovery;
B. the standard for obtaining an evidentiary hearing;
C. the standard governing hearsay evidence;
D. the application of confrontation and compulsory process rights; and
E. the relevant standards of proof and burdens of production and persuasion, and
any burden shifting.
Counsel for petitioners and the government shall file responses by August 1, 2008.
4. Factual Returns. Beginning with the earliest filed petitions of petitioners currently
held at Guantanamo Bay, Cuba, the government shall file factual returns and motions to amend
factual returns on a rolling basis at a rate of at least 50 per month.1 The first 50 factual returns
and motions to amend factual returns are due by August 29, 2008. If the government wishes to
amend a factual return, it shall move to amend and attach to its motion the proposed amended
factual return. The Court will allow amendment only where the government establishes cause for
the amending. Additionally, if the government believes that an individual factual return is
significantly more complicated than others or a particular detainee’s circumstances present
unique issues that require more time to complete the return such that processing the return would
delay the overall processing, the government shall move for an exception to the sequencing
described above. As with amendments, the Court will only allow exceptions where the
government establishes cause. Similarly, any petitioners who have extraordinary circumstances
may move before this Court for an exception to the sequencing described above.
[FN 1: At this time pending further order of the Court, the government need not file factual
returns or motions to amend factual returns for the approximately 20 detainees charged with war
crimes under the Military Commissions Act of 2006.]
SO ORDERED.
July 11, 2008 /s/
Thomas F. Hogan
United States District Judge

FROM ROGER FITCH AND OUR FRIENDS DOWN UNDER

Roger Fitch Esq • July 4, 2008

Our Man in Washington

Roger Fitch in Washington celebrates Independence Day with the latest talk on torture as Addington and Yoo front the House Judiciary Committee … No surprises in Roberts’ and Scalia’s dissents in the most recent habeas decision … The Bush-Chaney team have only 200 days left in which to wreak havoc

If you believe The New York Times a debate is still raging over how much drowning is torture – particularly in the case of the “9/11” military commission defendant Khalid Sheikh Mohammed.

According to the Times, KSM had a fairly rough trot:

“The intensity of his treatment – various harsh techniques, including waterboarding, used about 100 times over a period of two weeks – prompted worries that officers might have crossed the boundary into illegal torture.”

Quite. The interest in water torture is now so great that the House Judiciary Committee called John Yoo and David Addington to testify.

As was to be expected, both men suffered serious memory losses. A McClatchy newspapers report has more.

Addington was openly contemptuous of the committee, as Slate and The Washington Post noted.

While John Yoo refused to say whether the president could order a suspect to be buried alive, Addington said he couldn’t even talk about torture techniques because, “Al Qaeda may watch C-Span [TV]”.

A week earlier at the Senate, the Armed Services Committee held hearings at which the senior Judge Advocate at Guantánamo in 2002, Lt Col Diane Beaver, testified about her torture opinion.

Her considerable role in setting up the “enhanced interrogation techniques” was revealed in documents released by the committee chairman, Sen. Carl Levin (pic).

The documents include damning notes from a Guantánamo meeting where Col. Beaver, joined by alleged psychologists, and “lawyers” from the CIA and Defence Intelligence, cheerfully discussed torture techniques.

The New York Times headline read, “Notes Show Confusion on Interrogation Methods” – perhaps a misprint for “Collusion”.

McClatchy called this blatant lawbreaking an “easing of laws” in its otherwise fine series of articles on US detention policies, published in June.

The Washington Post sadly noted (with some surprise) that the White House had ignored contrary legal advice on torture.

About this time Maj Gen Antonio Taguba (pic) – who famously investigated the Abu Ghraib scandal – made the news by openly accusing the White House itself of war crimes.

Breaking news reports indicate that Mr Bush may have war crimes company (besides Cheney, “Jim” Haynes, Yoo and Addington) in Gen Richard Myers, former head of the joint chiefs of staff and therefore principal military adviser to the “Commander-in-Chief”.

The Los Angeles Times’ Tim Rutten doesn’t think the Bush gang should be prosecuted for war crimes, and suggested only psychoanalysis was needed.

* * *

We shouldn’t be surprised by the dissent of Chief Justice John Roberts in the Boumediene decision that restored habeas.

It will be recalled that, during the interval between his judicial audition and his nomination to the Supreme Court, Roberts (seen here) delivered a solid gold Court of Appeals performance in the Hamdan case, where he voted not only to uphold the “presidential” military commissions, but provided the necessary second vote for the non-application of Geneva’s Common Article Three (see my post of August 2005).

It was the dissent of Justice Antonin Scalia, however, that caused the most outrage in the editorial pages and blogosphere.

Scalia was criticised both for his credulous acceptance of the government-propagated urban myth that 30 freed Gitmo men had “returned to the battlefield” to fight the US, and its corollary that there would be blood on the hands of the justices in the Boumediene majority.

Law prof Michael Dorf thought the only hands with blood on them would be Scalia’s, in light of his majority in the pro-gun Heller case recognizing an individual right to bear arms under the Second Amendment.

* * *

Following the Supreme Court’s Boumediene decision, the DC Court of Appeals ruled in favour of Huzaifa Parhat in a Detainee Treatment Act review of his “enemy combatant” status.

It was the first DTA decision. The court cited Lewis Carroll as it derided the government’s case.

Yet it may not matter, in the long run, that the evidence was insufficient. Already, the government wants to redo the hearsay habeas returns they filed in 2004 and 2005.

They never thought they’d have to back them up.

* * *

July 4th has special significance for Americans this year. The Cheney-Bush team will have only 200 days left to wreak havoc, so it’s no surprise they’re busy bringing charges against yet another water-logged and damaged prisoner as the end draws near.

As if to emphasise that hardcore torture is no bar to death-penalty military trials, the Pentagon has now brought charges against a Saudi, Abd al-Rahim Al-Nashiri, the second of three known water-torture victims.

The third, Abu Zubaydah, must be considering his position.

Al-Nashiri is one of the alleged USS Cole (pic) bombers, and the CIA admits waterboarding him.

At his Combat Status Review Tribunal he gave heavily censored evidence about torture and the confessions he made to stop it. Unlike Khalid Sheikh Mohammed, he has recanted his confessions.

It was certainly a crime to attack the US ship in the port in Yemen and kill 17 sailors. But it happened before there was a war, and had nothing to do with 9/11 or Afghanistan – the ostensible bases for George Bush’s war powers.

Al-Nashiri, no less than Ahmed Ghailani (see my post of June 2), should be tried in the US.

* * *

For those who grow nostalgic when an old and traditional way of life passes, there was the sad report in June that the English manufacturers Hiatt and Company will soon be closing down.

The venerable Birmingham firm had produced quality shackles (and until recently, leg irons) since 1780.

The company has always done a good business in the US. As The Guardian once reported:

“In the late 18th century the company made ‘Nigger collars’ for restraining slaves in America. Today, it makes the shackles that hold the inmates of Guantánamo Bay.”

But Guantánameros need not be concerned. The company will continue production in the US – and now in designer colours.

senators letter

LAW OFFICE OF H. CANDACE GORMAN

H. Candace Gorman

hcgorman@igc.org FAX 888.826.6947

June 20, 2008

Dear Senators Durbin and Obama,

Right now it looks like you both have decided to sit out the FISA fight. That is unfortunate.

I am an attorney who took on the honorable chore of representing two men at Guantanamo, pro bono. My clients are still in that hell hole.

As a result of my representation of these men I have been subjected to government surveillance of my phone (and probably emails), both at my office and at home. This surveillance has made it impossible for me to continue to represent other individuals because I cannot guanantee them confidentiality. In fact, I can assure them that there will be no confidentiality because the government is listening in.

Except for my Guantanamo clients I have no clients right now. It means that I am spending my savings to represent these men and I have no income coming in.

I have a lawsuit pending regarding this illegal surveillance. If this so called “compromise” bill gets passed my lawsuit will be dismissed and I will be forced to give up my civil rights law practice for the long run.

If you sit out this FISA fight today. I will sit out election day.

Best regards,

H. Candace Gorman

H. Candace Gorman

Bring Binyam Back to Britain

URGENT!
As George Bush visits London, Reprieve tells Bush and Brown: Bring Binyam Back to Britain

Where: Trafalgar Square, in front of the National Gallery
When: 3 pm, Sunday 15 June
Who: Reprieve Director Clive Stafford Smith, former Guantánamo prisoners, Barney the Dinosaur and other special guests

On Sunday 15 June, US President George W. Bush is visiting London as part of his valedictory world tour, and will be having tea with the Queen and dinner with Prime Minister Gordon Brown.

Reprieve, the legal action charity that represents over 30 Guantánamo prisoners, is using this opportunity to highlight the suffering of Binyam Mohamed, the London resident who remains in Guantánamo Bay. The US military has announced that it wants to put him through its discredited military commission process, and a final decision will be made in the next two weeks. The commission system is so corrupt that Col. Morris Davis recently quit as the chief military prosecutor, because of the system’s many flaws, one being that evidence derived from torture was going to be used against the prisoners.

Nothing could be more true of Binyam, who was taken to Morocco where his genitals were razor-bladed for 18 months. After that he was rendered to more abuse in the CIA-run “Dark Prison” in Kabul, where he was tortured psychologically, hung up and subjected to incredibly loud music for 20 days at a time. He has been imprisoned in Guantánamo Bay since September 2004.

The timing of President Bush’s visit to London is fortuitous but only if we can make sure that he gets the message. We are meeting at 3 pm outside the National Gallery in Trafalgar Square and are working towards a finale outside the Southbank Centre, where Massive Attack are hosting a series of Reprieve events as part of Meltdown 2008, at 4.30pm.

Throughout this initiative, Reprieve will dramatize the torture-by-music that Binyam and other prisoners have suffered. Barney the Purple Dinosaur will be making a personal appearance, as the theme tune to this popular children’s show has been one of the US torturers’ favourite pieces of torture music. We are also hoping to involve other creative “cartoon characters”: Katy the Kangaroo Court, and even Roger the Razor Blade. Cosmetics firm Lush, who have been supporting the work of Reprieve, have kindly agreed to bring along their massive “Fair Trial My Arse” orange underpants, to highlight the nature of the unjust process that Binyam is facing.

You don’t have to sing the Barney theme song with us (although you’d be welcome to!). Or you can dress up in any outfit you think dramatises Binyam’s torture over the past six years. We are also very keen for credible spokespeople to stand up for Binyam and demand that Gordon Brown place his immediate repatriation to Britain on the summit agenda.

Please join us!

-- ENDS --


For further information, please contact Alex Grace, Reprieve’s Events Producer, on 020 7251 3692 or Andy Worthington at Reprieve’s Press Office on 020 7427 1099.
Emails – Alex: alex@reprieve.org.uk, Andy: Andy@reprieve.org.uk.

Justinian

Roger Fitch Esq • June 2, 2008

Our Man in Washington

Guantánamo unravelling … Bush admin sacks judge mid-trial for being too fair and independent … Canadian Supreme Court finds Gitmo process illegal … Administration planning election year war crimes spectacular … CIA station chief in Milan still on the run

The end of May saw a sensational development in the Guantánamo saga.

The Bush Regime did what even Charles Stuart never attempted: it sacked a judge mid-trial for showing fairness and independence and a disinclination to admit evidence derived from torture – the very thing the White House wants.

The Pentagon claimed that Omar Khadr’s Judge, Peter Brownback, was planning to retire, yet the Toronto Globe and Mail wondered, “why the judge would retire in the middle of an ongoing military tribunal case”.

Everyone seemed to forget that s.949b of the Military Commissions Act forbids “unlawfully influencing” a military judge.

The judge’s crime? Ruling for the defence in many of the 50 motions filed so far.

Another Gitmo judge, Keith Allred, must now be considering his position. He postponed Salim Hamdan’s military commission until after the Supreme Court has announced its decision in Boumediene because waiting for that decision “avoids the potential embarrassment, waste of resources, and prejudice to the accused that would accompany an adverse decision mid-trial”.

Brownback and Allred have been on the nose with the government since last year, when each refused to certify “enemy combatants” as “unlawful” on the Pentagon’s mere say-so.

As David Glazier reports, these dreadful delays in commission justice have the Wall Street Journal terribly upset.

It will all be added grist to the Congressional mill, where a House subcommittee has been holding hearings on Guantánamo with testimony from prominent Gitmo defence lawyers Clive Stafford Smith and Sabin Willett (pic) and even an abductee, Murat Kurnaz.

Another person testifying was Glenn Sulmasy, a stalking horse for the Bush adminstration’s planned national security courts, likely to be introduced in Congress if the government loses the Boumediene-Al Odah case.

National security courts are opposed by constitutional scholars including former federal prosecutors, but the idea has attracted the support of former Office of Legal Counsel head Jack Goldsmith and former Hamdan counsel Neil Katyal.

* * *

As expected, the Canadian Supreme Court ruled in Omar Khadr’s favour in a high-profile May decision.

The court found the Gitmo process was illegal, basing its decision squarely on the opinions of the US Supreme Court in Rasul and Hamdan.

Aziz Huq thinks this may influence the US Supreme Court in its forthcoming Boumediene decision.

The Canadians had previously cautioned their diplomats that the US uses torture, and a Canadian judge had refused to return refugees to the US, finding that the US is a country that flouts treaties prohibiting refoulement to torture and mistreatment.

Even as the Guantánamo endgame nears, new commission defendants continue to be booked, with some prisoners delivered to court bruised.

Joanne Mariner has prepared a “cheat sheet” on the military commissions, now slightly out of date.

The main arraignment, for the Guantánamo Six, is set for June 6. The Bush administration is planning an election year spectacular, culminating in a September trial of the Six (now Five) for the so-called war crimes of attacking the WTC and Pentagon, with special telecasts for families of the 9/11 victims.

The 9/11 lawyers want to dismiss for unlawful influence, with evidence from ex-Chief Prosecutor Moe Davis (pic).

Meanwhile, Davis says supporting the defence cost him a medal.

A new group of commission defendants known as “the Faisalabad Three” has been charged with bomb-making in Pakistan, which (like New York) was never a theatre of war. Each is getting the “conspiracy” and “material support” treatment; neither charge being a crime under the law of war.

The same three men were charged in the 2004 military commissions struck down by the Supreme Court.

This leaves only two of Bush’s original designees not yet redesignated. Binyam Mohamed, one of the last two, expects to be charged any day.

* * *

More military commission charges that have no connection with the war in Afghanistan were recently sworn against Ahmed Ghailani (pic).

Ghailani is already under indictment in New York for the same acts. Why wasn’t he handed over to the courts in New York when he was apprehended by the US?

Slate lawyer-blogger Phillip Carter sees a problem in trying someone for “war crimes” invented in 2006, where the acts involved occurred in 1998.

The Los Angeles Times and Miami Herald were among the few media to spot the apparent obstruction of justice by the CIA in delivering to the Pentagon for a military trial someone who was wanted in New York on a valid warrant for murder.

But judicial proceedings don’t suit the Bush White House. Clearly, Ghailani was withheld from the New York court’s jurisdiction so he could be coercively interrogated, and then “tried” in the only place where someone who has been coerced can be tried: a Bush Court created by the Military Commissions Act 2006.

At Guantánamo Mr Ghailani will not have the rights he would have had in New York, and there will be no problem of the Constitution and Bill of Rights being applied.

The government hopes to introduce tainted evidence, and in any case, media coverage will be filtered by the Pentagon.

Gone too is the danger of an independent judge and jury, and most importantly, there is no recourse to the independent-minded judges of the Second Circuit Court of Appeals.

Naturally, none of the charges against Ghailani is a crime known to the law of war. Yet even the Military Commissions Act requires that offences be “war crimes … triable by military commissions”, and the Hamdan plurality ruled that, to constitute a valid war crime, the offence has to have occurred after September 11, 2001, and in a theatre of war: no war, no war crime.

* * *

The ACLU recently discovered that the CIA runs recruiting ads next to every New York Times Gitmo story.

That’s not surprising. The agency badly needs new agents, as existing “operatives” are going on trial en masse (as well as in absentia) overseas.

At the moment, CIA agents are being tried in Italy for kidnapping an Egyptian off the streets of Milan.

One named defendant who faithfully followed John Yoo’s advice on torture abductions, sorry, extraordinary renditions, was the CIA station chief in Milan, Robert Lady.

He’s been on the run, however, since surfacing long enough to give Congressional Quarterly this heartbreaking interview about his plight in 2007.

The worst of it is, he lost his retirement villa in Italy. And he may have mislaid his wife.

Taking a stand

Convicted Criminal Considers the Cause, the Crime, and the Court By Malachy Kilbride malachykilbride@yahoo.com Last week, as prisoners continued to languish in the infamous and illegally-run US concentration camp of Guantanamo, I was fortunate to join 34 fellow criminals in Washington DC at the District of Columbia Superior Court as our case, for an act of peaceful civil resistance, was heard by a judge and prosecuted by one of America's officers of the court. Our court experience was far more than our unfortunate brothers in Guantanamo have received after 6 years in their open-ended confinement. Approximately 270 Guantanamo prisoners are held in captivity without charges, Habeas Corpus rights denied, access to civil courts denied, living in conditions of abuse, torture, and with little hope for life or liberty. Some have committed suicide because of their desperate situation. On January 11, 2008 hundreds of people solemnly processed from The National Mall to The United States Supreme Court marking the 6th year of the prison camp to redress our grievances against the US Government and its use of abusive treatment, torture, and the ending of Habeas Corpus rights for the Guantanamo prisoners. Out of the hundreds who were a part of this assembly, outside and inside the US Supreme Court, I was one of 80 people who ended up being arrested for our nonviolent witness, kneeling and praying, calling for the closing of the Guantanamo detention camp. Those of us who were arrested for our peaceful justice-advocacy for the prisoners were charged with "unlawful free speech" and a second charge, for those inside, of "causing a harangue". The "harangue" charge was eventually dropped. After our arrest we were held for over 30 hours in a chain of custody from the US Supreme Court Police to the DC Metropolitan Police, and finally in holding cells below the courtroom by the US Marshals. We chose not to have any identification such as drivers' licenses and instead told the police that we were there in the name of a specific Guantanamo prisoner. The Guantanamo prisoner I represented is Sahr Fawaz Ahmad. Many of us had been held on January 11 in handcuffs for over 8 hours and some not given any food or water until the next day. The day after our arrest, while still in custody, the US Marshals refused to give us water. Our lawyer had to get the arraignment judge to order the marshals to give us water. On January 12 we were all arraigned late in the day and early evening. We were then free to go until we would be in court to defend ourselves against the charges. Again, this is more than those in Guantanamo have received even after 6 long years of imprisonment without charge or conviction. On May 27, 2008 we gathered for our trial in the DC Superior Court. As we went to trial our numbers had decreased from 80 initially arrested to 34 prepared for trial. Several of the 80 had made agreements with the government not to get arrested for 6 months and having their records cleared if they maintained this agreement. Others had their charges dropped for no apparent reason just before our trial. Our judge was Wendell P. Gardner Jr. and our US Government prosecutor was Magdelena Acevado. We would defend ourselves Pro Se meaning we would represent ourselves with the assistance of attorney-advisers Mark Goldstone and Anne Wilcox. By going Pro Se we have the chance to introduce our message about the Guantanamo prisoners and what motivated us to take such a dramatic action at The US Supreme Court. The trial lasted three days ending late on Thursday May 29. During our trial almost half of my fellow co-defendants wore orange jumpsuits and remained silent and would not take an active role in their defense. They did this to be in solidarity with the prisoners of Guantanamo and to illustrate the lack of justice the prisoners have experienced while being held in the US occupied portion of Cuba. The rest of us took on the various roles such as giving opening statements, cross examination of government witnesses, examination of defense witnesses, motion for judgment of acquittal, and closing statements in our defense. We all identified ourselves in court with our own names in addition to naming the Guantanamo prisoner we represented. In naming a Guantanamo prisoner we were in some small symbolic way getting these illegally held captives into the court record, again this is much more than what they have received so far. During the trial several of my codefendants made deeply moving and passionate statements concerning the rights of the prisoners, about the abuse and torture we know is inflicted upon them, the importance of Habeas Corpus, human rights, and international law. They spoke eloquently about why we were called by conscience and the need to follow a higher law that is above statutes that govern behavior in and around a federal building. We all acted peacefully at the US Supreme Court on January 11, 2008 and firmly believe that we were there to uphold the law. During the trial the government failed to provide any evidence of our individual guilt. We were identified in court with post-arrest photos by police witnesses. A video depicting some of what happened outside The US Supreme Court was presented without a single police officer identifying any one of us as an individual who committed a crime. Not one person who was inside on that day was ever identified by a police witness as committing any crime. One officer testified that the first time he saw me was on an elevator handcuffed being escorted by another officer after my arrest. Nevertheless we were all found guilty by the judge. We were found guilty by the use of post-arrest photos and guilt by association and not as individuals who each committed a crime. This is significant but not the most important thing for us. We did what we did and went to trial because of the prisoners of Guantanamo. We were there for them. We were there to speak out for those who cannot. We were there to uphold international law, our constitution, our Bill of Rights, The Geneva Conventions, for justice and humanity. Our government refuses to allow the Guantanamo prisoners into our civil courts to be fairly tried. Instead our government has set up military tribunals where hearsay evidence is permitted, information obtained from those tortured is admitted as evidence, and the military judge picks the defense, prosecution, and jury. This is not justice. We took the names of the prisoners into court with us written on our hearts and minds and we spoke their names. We were subsequently sentenced by Judge Gardiner on May 30. We now all face one year of probation and a one year order to stay away from the US Supreme Court building, grounds, and the surrounding sidewalk. Some of us have fines of $50 and a few have, including myself, a $100 fine. Some refused to accept probation knowing they may be called by conscience, to witness for justice and peace, to risk arrest again. These people, five of them, received immediate jail time of 10 days and an additional one to 15 days. Another defendant, a retired school teacher in her 70's, received 5 days, and I was one of three who received 1 day in jail in addition 29 days in jail if we get arrested within the year. Again, this is nothing compared to what our brothers in Guantanamo face every day. Our judge gave us these punishments because he said he wants us to learn a lesson. But, in reality the government is clamping down on peaceful dissent by jailing us and threatening us with more jail if we continue our nonviolent resistance to injustice. This is the lesson the government wants nonviolent dissenters to learn. The lesson the government needs to learn, however, is that this won't work with us. We will be back for our brothers in Guantanamo and the estimated 27,000 other prisoners in secret black sites around the world where torture is practiced. As long as the Guantanamo concentration camp is open and in operation none of us is truly free. As long as the likes of Bush, Cheney, Rumsfeld, Rice, Gonzalez, and Yoo remain at large ordering, advocating, and approving of torture none of us is safe. As long as the bipartisan US Congress fails to restore Habeas Corpus and close Guantanamo we have lost our republic and tyranny will rule us. We all must work to close this place and bring justice to those held captive. If this means risking arrest for nonviolent symbolic actions of peaceful civil resistance and then enduring a time of incarceration then this must be done for the sake of the higher laws of justice and the leadings of our individual consciences. I urge all people of goodwill to join us in this struggle for justice. For more information on the campaign to close Guantanamo, our trial, and the work to end torture go to: http://www.witnesstorture.org/