From Roger Fitch and our Friends Down Under

USA's new found regard for international law

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

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

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

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

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

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

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

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

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

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

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

Lawfare has the story with the briefs here and here.

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

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

Summaries of arguments are here and here.

* * *

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

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

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

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

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

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

However, he's hardly a diplomat.

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

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

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

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

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

* * *

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

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

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

Law prof Steve Vladeck explains and Jurist has more.

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

Jonathan Hafetz agrees at Concurring Opinions.

From Roger Fitch and our friends down under at Justinian

Law of war is a moveable feast

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

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

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

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

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

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

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

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

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

Scotusblog has more.

* * *

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

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

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

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

Human Rights First has more.

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

* * *

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

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

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

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

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

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

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

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

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

And it doesn't stop there:

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

Nevertheless, the Khadr case continues.

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

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

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

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

* * *

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

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

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

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

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

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

* * *

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

The docket is here.

* * *

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

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

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

David Luban and Emptywheel comment.

From Roger Fitch and our friends down under at Justinian

Roger Fitch Esq • July 23, 2010

Rough treatment by the courts

“You have a right to a speedy trial – unless they need to torture you first” ... The media’s characterisation of waterboarding – it used to be called torture, now it’s nothing special … Americans stripped of their citizenship by transport safety bureaucrats … Our Man in Washington reports

Long-established legal principles are falling left and right, all in the name of … National Security.

In New York, in a shocking but not unexpected decision on the 6th amendment right to speedy trial, federal district judge Lewis Kaplan has ruled Ahmed Ghailani should stand trial in 2010 for the terrorism charges on which he was first indicted 12 years ago, in 1998.

This was so even though he has been in continuous government custody since 2004.

The New York Times has more.

Ghailani was indicted by the Clinton administration for the bombing of US embassies in Africa.

When he was apprehended, the Bush administration withheld him from the New York court for five years, two of them in the CIA torture program.

Judge Kaplan has already ruled, however, that any torture Ghailani suffered is irrelevant, and accepted the government’s dubious claims that it acted in good faith.

Despite the fact Ghailani was charged for acts that occurred outside a time and place of war, Judge Kaplan took it for granted that the government had a right to hold him in military detention as an “enemy combatant” and that a military commission (where Ghailani was also charged) would have been valid.

He accepted detention for interrogation alone, and the (previously unknown) right to lock people up as “intelligence assets”.

The Supreme Court has said that an “enemy combatant” – the ostensible basis for Ghailani’s CIA and Gitmo detention – is someone seized in the Afghanistan war for events related to 9/11, and also has said that such prisoners cannot be held indefinitely just for interrogation.

If one accepts the legality of the previous detention, however, speedy trial problems magically disappear.

Perversely, the prior detention is legitimated for purposes of tolling speedy trial requirements, while any torture that occurred during that detention is considered irrelevant to the trial now set to begin.

Emptywheel summed up the decision:

“You have a right to speedy trial – unless they need to torture you first.”

So far the only conviction of an American (or anyone else) under the US Torture Act has been the US-born son of the African dictator Charles Taylor, a conviction just upheld by the 11th Circuit.

There’s also a Torture Victim Protection Act, but it’s been roughly treated by US courts.

One such court – prudently left under Republican control by Mr Obama – is the DC Circuit, which just did its bit for national security by suggesting that “some evidence” should be the standard for Guantánamo detentions rather than the onerous “preponderance of evidence” adopted by the DC district courts.

National security demands no less.

* * *

Peripheral Guantánamo issues are still playing out in the courts.

The Center for Constitutional Rights will take the snooping-on-lawyers case Wilner v NSA to the Supreme Court.

The cert petition is here.

Mother Jones, meanwhile, has more on the case of the Guantánamo lawyers who snooped on the CIA, and the trouble it brought them.

Mother Jones also has a report on the professional strife former CIA and Guantánamo psychologists are in.

These include the now-dean of a college psychology department, Larry James, the notorious CIA contractor James Mitchell (pic), and a third psychologist.

* * *

The House Judiciary Committee testimony of torture lawyer (now federal appeals judge) Jay Bybee, has just been released, and it confirms that some of the gruesome interrogation techniques used by the Bush Gang went beyond what DoJ authorised.

Jason Leopold has more.

Emptywheel noticed Bybee may have inadvertently confirmed that CIA detainee Abu Zubaydah was subjected to a torture experiment in sleep deprivation before the opinion justifying the procedure was requested.

As for Abu Zubaydah’s 83 episodes of waterboarding, was it really torture?

That depends on who’s drowning whom. A new Harvard study on the US media’s characterisation of water torture found that:

“From the early 1930s until the modern story broke in 2004, the newspapers that covered waterboarding almost uniformly called the practice torture or implied it was torture: The New York Times characterized it thus in 81.5 percent … of articles on the subject and The Los Angeles Times did so in 96.3 percent of articles… By contrast, from 2002‐2008, the studied newspapers almost never referred to waterboarding as torture. The New York Times called waterboarding torture or implied it was torture in just 2 of 143 articles (1.4 percent)... In addition, the newspapers are much more likely to call waterboarding torture if a country other than the United States is the perpetrator.”

Emptywheel comments.

* * *

At least Britain’s new conservative PM David Cameron (snap) is willing to do what a “liberal” US president won’t – investigate the previous government’s involvement in torture.

The Al Rawi civil torture case in Britain continues, however, and is producing bombshells such as MI6’s advice for dealing with detainees held by lawless intelligence services such as the CIA.

British disclosures already show involvement with the US in torture and rendition missions, e.g. Tony Blair personally intervened to send UK citizens and residents to Guantánamo rather than bring them home for uncertain prosecution.

* * *

Mr Obama recently had his first loss in an appeal against denial of habeas in a Guantánamo case.

Belkacem Bensayeh, the last man detained in the Boumediene case, will get a new habeas hearing, thanks to the DC Court of Appeals.

Scott Horton comments.

In Bensayeh the Court of Appeals had to explain to the Obama lawyers that possessing a false passport doesn’t make someone a member of al-Qaeda.

Perhaps we shouldn’t blame people for wanting false passports, when the real ones don’t work.

A number of Americans and permanent US residents are presently stranded overseas, unable to return to the US (or even fly over it) because the dreaded No-Fly List now trumps a passport.

It seems the Transport Security Administration and airlines flying to the US are colluding to effectively strip Americans of their citizenship.

The Washington Post reports that converting to Islam, visiting Yemen or studying Arabic will do the trick, not to mention the careless adoption of a Muslim name.

Being dusky doesn’t help.

CAIR (the Council on American Islamic Relations) has issued a travel advisory warning of “forced exile” for US Muslims who go abroad.

The ACLU has filed a lawsuit to stop the practice.

Jurist has more.

Get under that bus.....

Congressman: Questions on CIA Interrogations

By THE ASSOCIATED PRESS

Filed at 12:51 p.m. ET

WASHINGTON (AP) -- The House Judiciary Committee chairman said Thursday that an interview with a former Justice Department official shows the department did not authorize some of the harsh interrogation techniques reportedly used by the CIA.

Rep. John Conyers of Michigan made the comments after the committee interviewed former assistant attorney general Jay Bybee, who is now a federal appeals court judge. During the Bush administration, Bybee's Justice Department office wrote legal opinions governing the interrogation techniques used on terrorism detainees.

According to Conyers, Bybee's statements are highly relevant to an ongoing criminal investigation of alleged detainee abuse during the Bush administration.

The interview transcript shows that committee members asked Bybee whether such reported practices as dousing detainees with water and repetitive noise or loud music to keep prisoners awake were done without specific authorization by the Office of Legal Counsel, which Bybee headed.

Bush administration officials obtained legal advice on the CIA interrogations by bringing lists of planned techniques, or assumptions, to Bybee's office for analysis.

''So if these things occurred, dousing with cold water, subjecting to loud music to keep people from falling asleep, if that occurred, that means they were done without specific OLC authorization?'' Bybee was asked.

''That's right,'' Bybee replied.

''So the answer is 'yes?' '' a questioner asked.

''Those techniques were not authorized,'' Bybee replied.

Bybee subsequently modified his statements.

Under questioning about some of the reported techniques, Bybee said that ''the assumptions on which we were given this were not authorized specifically'' by OLC. The transcript shows that Bybee later proposed a change in his testimony to say that ''if the assumptions that we were given changed, they were not authorized specifically'' by OLC lawyers.

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

Reflections on the 4th of July by Roger Fitch

Roger Fitch Esq • July 8, 2010

The Fourth of July

Obama administration gets its first Guantánamo conviction … Osama’s cook and bottle washer pleads guilty to “material support” ... David Hicks also pleaded guilty to this concocted “war crime” ... Our Man in Washington reports

On July 4, we were reminded of the US Declaration of Independence, which speaks of an oppressive British monarch who “affected to render the Military independent of and superior to the Civil Power”, imposing “a jurisdiction foreign to our constitution and unacknowledged by our laws; giving his assent to acts of pretended legislation”; and “transporting us beyond Seas to be tried for pretended offences”.

In the 2006 Hamdan decision, the Supreme Court reiterated that “conspiracy” was not a valid crime under the Geneva Conventions or the laws of war, whatever the Bush administration might claim.

Congress proceeded to make it a crime anyway, and it was used (unsuccessfully) against Hamdan himself.

In 2009, top Obama administration lawyers from the departments of Justice and Defence admitted to Congress that “material support for terrorism”, invented by Congress in the Military Commissions Act 2006, was not a valid war crime and asked that it be dropped from the MCA 2009.

It wasn’t.

Neither inconvenient fact, however, prevented the US accepting (on July 7) a guilty plea from Osama bin Ladin’s cook and bookkeeper, Ibrahim Al Qosi, for material support and conspiracy.

Both “crimes” are currently before the Court of Military Commissions Review in the cases of Hamdan and Al-Bahlul (bin Ladin’s driver, and publicity man, respectively), and it is entirely possible they will be struck out on appeal.

Al Qosi becomes the second person, after David Hicks, to plead guilty to a non-existent, retrospectively applied, military commission offence.

His Sudanese and American lawyers may feel satisfied that they have brought some sort of resolution to their client’s nightmare, but every plea, and every conviction, is a knife in the US Constitution, the Geneva Conventions and the rule of law.

A military commission staged by Col Gaddafi would have had as much validity.

See previous Fitch on Material support

From Roger Fitch and our friends down under at Justinian

Roger Fitch Esq • June 21, 2010

Supreme Court wonderland

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

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

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

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

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

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

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

Arar was tortured there for 10 months.

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

The Mounties are now investigating the US

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

* * *

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

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

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

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

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

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

Mother Jones and Scott Horton were also harsh.

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

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

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

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

* * *

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

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

Alston discussed the report in a Scott Horton interview.

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

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

* * *

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

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

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

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

* * *

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

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

However, the court said:

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

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

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

The Washington Post and Andy Worthington comment.

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

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

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

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

* * *

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

The district court ordered his release.

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

Happily, Amherst, Massachusetts, offered him a home.

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

A solution is possible, however.

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

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

Why not an exchange, for the sake of art?

ACLU FOIA documents

Bush Era

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Obama Era

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

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

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