From Roger Fitch and our friends down under at Justinian

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

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

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

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

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...

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

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.