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davidbfpo
02-16-2008, 10:35 PM
The Lewis and Clark Law School, Portland, Oregon, USA held this symposium in April 2007 and have now published a number of articles. This is the link:

http://www.lclark.edu/org/lclr/issue_11_4.html and this one links to the speakers bios: http://www.lclark.edu/org/artslive/lawreviewsymp.html

The subjects include:

The Role of Federal Criminal Prosecutions in the War on Terrorism

Federal Prosecution of Terrorism-Related Offenses: Conviction and Sentencing Data in Light of the "Soft-Sentence" and "Data-Reliability"
Critiques

Enemies of the State: Rational Classification in the War on Terrorism

Combatant Status Review Tribunals: An Ordeal Through the Eyes of One "Enemy Combatant"

Enemy Aliens, Enemy Property, and Access to the Courts

Hamdan, Terror, War

Why States Need an International Law for Information Operations

Al-Qaeda and the Law of War

Surveillance and Transparency

Electronic Surveillance of Terrorism: The Intelligence/Law Enforcement Dilemma - A History

Rays of Sunlight in a Shadow “War”: FOIA, The Abuses of Anti-Terrorism, and the Strategy of Transparency

I've only read three, on surveillance, they are interesting for a non-American and probably of more value for an American.

davidbfpo

Jedburgh
06-05-2008, 02:19 AM
The Challenges of Trying Terrorists as Criminals (http://www.rand.org/pubs/technical_reports/2008/RAND_CF249.pdf)

Because of the asymmetric effects of many terrorist acts, the public and the press ensure that governments place a very high value on the prevention of terrorism. But dealing with terrorists is problematic for the executive branch, charged as it is with protecting the public. As Alexander Hamilton put it in the Federalist Papers: “Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates . . . to be more safe [nations] at length become willing to run the risk of being less free.” Certainly, if they consider it is not possible for terrorists to be convicted, governments will consider
• changing criminal procedures and truncating the rights of accused terrorists to facilitate convictions
• detention without trial
• rendition (in all of its senses
• military or paramilitary solutions
• specialist courts or tribunals.

Most if not all of those responses may infringe the rule of law. Equally, there is much at stake for the judicial branch in this context. Thus, when terrorism charges are brought, courts must strive to balance the rights of the parties, particularly the accused, on the one hand and national security on the other. Special and sometimes unique questions that arise in such cases include justiciability, deference to the other branches of government, admissibility of evidence, prosecutorial duties of disclosure, and the effect on the press and on public confidence of any departure from open justice.

These issues, which are at the heart of public debate in the United States and a number of ally nations, require continued and close attention. An interdisciplinary colloquium held in January 2008 in Washington, D.C., considered some of them. A feature of the conference was the bringing together of lawyers (including judges, prosecutors, and human rights and international lawyers), strategists, terrorism experts, and intelligence, and law enforcement officials. International representatives also attended, bringing perspectives of U.S. allies, notably, the United Kingdom and Australia, to the debate. A summary of the course of discussion follows.

Schmedlap
06-05-2008, 01:56 PM
The question as to what type of trial to give to foreign combatants who are held prisoner begs the question of whether they should be given one at all. Is anyone aware of an explanation for why the detainees should be afforded a trial?

Most arguments seem to assume that a trial should occur and then embark upon a debate over what type of trial and how to conduct it. But I have never seen a justification for why we should hold a trial. I don't understand why non-US citizens who were taken prisoner on a battlefield, during armed conflict, and held prisoner outside of our borders, should have protections in the US Constitution bestowed upon them. Rather than addressing this question, we are subjected to accusations of torture, mistreatment, and denial of due process (again, without clarifying whether the detainees are owed any due process).

In the quote that begins this thread, there is a mention of undermining the rule of law. It seems that undermining the rule of law in Taliban-controlled Afghanistan was a good thing. Laws against shaving beards and flying kites don't seem all that virtuous to begin with. If the implication is that rule of law could be undermined in the US, then I don't see how that is possible, so long as the individuals are non-US citizens, not in the US, and captured on a battlefield during time of war.

marct
06-05-2008, 02:21 PM
Hi Schmedlap,


The question as to what type of trial to give to foreign combatants who are held prisoner begs the question of whether they should be given one at all. Is anyone aware of an explanation for why the detainees should be afforded a trial?

There are several reasons why this should happen. Let's start with the obvious ones. First, are they "combatants"? This is a crucial question, because if they are, then they are protected under international law (at least under some interpretations of it). The US has taken a position that the Taliban are not legal combatants and, as such, no not fall under the purvey of the Geneva Conventions which, IMO, is ridiculous but it's still the reality we are dealing with.

If, as the Bush administration has held, they are not "legal combatants", then what are they? The rhetorical answer was to call them "criminals", but even criminals have rights under international laws to which the US is a signatory. Thus we end up with attempts to create a new category that is not covered under international law. But this attempt has been viewed, both within the US and internationally, as way of operating outside of international law and contravening the UN charter. This is one of the legal reasons for giving them trials.

A second and, IMO, more important reason stands behind all of the rhetoric: by attempting to declare these people as "non-persons" and outside of the law, they are being defined as "non-human" and, hence, anything done to them is fine. But, if history teaches us anything, every time a society has defined one group of people as non-humans (i.e. outside the law), that same society will turn around and define other groups the same way. This process is well summed up in the poem First they came (http://en.wikipedia.org/wiki/First_they_came...#Poem_.281976_version.29) attributed to Martin Niemöller.


In the quote that begins this thread, there is a mention of undermining the rule of law. It seems that undermining the rule of law in Taliban-controlled Afghanistan was a good thing. Laws against shaving beards and flying kites don't seem all that virtuous to begin with. If the implication is that rule of law could be undermined in the US, then I don't see how that is possible, so long as the individuals are non-US citizens, not in the US, and captured on a battlefield during time of war.

How about laws against polygamy and polyandry :D? Almost any law that enforces a moral code can, and will, be laughed at by people who don't agree with that code. For example, there are, I believe, still some laws on the books in parts of Ontario that make it illegal for an unmarried couple to dance within 12 inches of each other. And, as far as I know, it is still illegal to drive your flock of sheep down Younge street in Toronto between the hours of 1 and 3 PM.

As far as them being non-US citizens, that is immaterial. They have been captured by US troops and, unless you wish to argue that US troops are not bound by laws when in foreign countries, they have to be treated under a rule of law scenario. If they are captured during a "time of war" then they should be treated under the Geneva Conventions or else the US is breaking those conventions.

Where you (the US) are getting into trouble is by declaring them "criminals" or trying to create uncovered categories. By declaring them "criminals" and bringing them into US jurisdiction, you are automatically typing them and, as such, they have the full protection of your constitution.

Ken White
06-05-2008, 02:37 PM
the Lawyers totally blew it in an effort to outsmart themselves. Use of 'PW' instead of 'detainee' and keeping them in the nation where picked up -- or in Afghanistan for those from Pakistan or elsewhere -- would've been the simple solution and far better PR (and, no Lawyer but IMO, legal) decision. All that detainee foolishness and the arch stupidity that was and is Gitmo couldn't have been much worse if the bad guys were the planners.

Hmmm... :wry:

On the PR angle, the US is going to get tabbed by not only the opposition but by some of our 'friends' and by many here in the US as the bad guy almost no matter what we do. Why that is so difficult for the squirrels in DC to comprehend and attempt to mitigate by not being stupid I cannot fathom. They need to tumble to that fact and stop trying to 'do the right thing so the world will see we're really nice.' The world is absolutely determined not to see that and to deny it if it appears that way; been that way all my adult life and it's really not much worse now than it has been since about 1947 or so; we just communicate far more widely and rapidly today so it seems worse. Not as bad now as it was during Viet Nam.

So on the PR front (since the late 40s) as well as the international terrorism front (since 1972) we refuse to adapt to reality; "It must be done as we wish it done." Get over it, Washington, not going to happen... :mad:

NOTE: This was addressed to Shmedlap's post; Marc beat me ;)

wm
06-05-2008, 02:43 PM
The question as to what type of trial to give to foreign combatants who are held prisoner begs the question of whether they should be given one at all. Is anyone aware of an explanation for why the detainees should be afforded a trial?
The simple answer is that this what a civilized, law-abiding nation does with people who act outside the bounds of accepted behavior (laws and civilized customs in other words).


Most arguments seem to assume that a trial should occur and then embark upon a debate over what type of trial and how to conduct it. But I have never seen a justification for why we should hold a trial. I don't understand why non-US citizens who were taken prisoner on a battlefield, during armed conflict, and held prisoner outside of our borders, should have protections in the US Constitution bestowed upon them. Rather than addressing this question, we are subjected to accusations of torture, mistreatment, and denial of due process (again, without clarifying whether the detainees are owed any due process).
Protections of one's rights, as codified in the U. S. Constitution and its amendments, are viewed, rightly or wrongly, as the sine qua non of how to treat someone who has been accused of infringing on the rights of others. Another way of saying this is that when one infringes on the rights of others, the infringer does not thereby forfeit his or her own rights. To adopt the alternative position that one forfeits rights as a result of misconduct would be tantamount to adopting a position that "two wrongs make a right," a position that my parents and grandparents (and probably most other readers' as well) taught me was wrong (morally).


In the quote that begins this thread, there is a mention of undermining the rule of law. It seems that undermining the rule of law in Taliban-controlled Afghanistan was a good thing. Laws against shaving beards and flying kites don't seem all that virtuous to begin with. If the implication is that rule of law could be undermined in the US, then I don't see how that is possible, so long as the individuals are non-US citizens, not in the US, and captured on a battlefield during time of war.
Undermining the rule of law is very different from changing poor laws. It may well be the case that sometimes one must use other than peaceful means to change laws, but even in those cases, there are lawful and unlawful ways to do so. By the way, I think it is open to argument whether what may have passed for the rule of law in Taleban-controled Afghanistan really was a version of the rule of law in the eyes of the rest of the cvilized world.

marct
06-05-2008, 02:48 PM
Hi Ken,


On the PR angle, the US is going to get tabbed by not only the opposition but by some of our 'friends' and by many here in the US as the bad guy almost no matter what we do. Why that is so difficult for the squirrels in DC to comprehend and attempt to mitigate by not being stupid I cannot fathom. They need to tumble to that fact and stop trying to 'do the right thing so the world will see we're really nice.'

Too true! Isn't there a Biblical saying about "the meek shall inherit the Earth - a 6" x 6' x 3' plot"?

On a more serious note, though, there has been a lot of international concern about the US governments position on international law in many areas, and the Gitmo experience (along with extraordinary rendition, etc.) only reinforces the concerns held by other countries (think Italy for a sec...). In Canada, we have been following the Gitmo travesty ever since Khadr was captured, and the ongoing French bedroom farce of his detainment makes headlines fairly often.

wm
06-05-2008, 02:56 PM
the US is going to get tabbed by not only the opposition but by some of our 'friends' and by many here in the US as the bad guy almost no matter what we do. Why that is so difficult for the squirrels in DC to comprehend and attempt to mitigate by not being stupid I cannot fathom. They need to tumble to that fact and stop trying to 'do the right thing so the world will see we're really nice.'

I do not disagree with your point, but I would hope that we could replace the motivation for doing the right thing. We ought not to be doing "the right thing so the world will see we're really nice." We ought to be doing the right thing just because it is the right thing. (Sorry if this sounds like I'm being naively idealistic ;))

Ken White
06-05-2008, 03:01 PM
There are several reasons why this should happen. Let's start with the obvious ones. First, are they "combatants"? This is a crucial question, because if they are, then they are protected under international law (at least under some interpretations of it). True. Some. The issue is whether they are legal combatants as stipulated in the GC or not; they meet none of the criteria therefor. Oversight in the GC? Possibly but unquestionably they are not members of a uniformed military force.
The US has taken a position that the Taliban are not legal combatants and, as such, no not fall under the purvey of the Geneva Conventions which, IMO, is ridiculous but it's still the reality we are dealing with.What's ridiculous; the US position or the GC failure to protect illegal combatants?
If, as the Bush administration has held, they are not "legal combatants", then what are they? ... This is one of the legal reasons for giving them trials.True, sort of. The rules on illegal combatants say they've got to get sorted as PW or criminals and we blew that aspect. The Commissions are a cover for doing something too late and too little. Thus my contention they should've been called PW from the get go. The Admin didn't do that because they wanted to interrogate some of them which the GC prohibits. That could've been done had the control of those few been retained by other than the Armed Forces (an admittedly arguably illegal act -- but reality will intrude on legitimacy... :wry:
As far as them being non-US citizens, that is immaterial. They have been captured by US troops and, unless you wish to argue that US troops are not bound by laws when in foreign countries, they have to be treated under a rule of law scenario. If they are captured during a "time of war" then they should be treated under the Geneva Conventions or else the US is breaking those conventions.That is subject to debate due to the legal combatant distinction.
Where you (the US) are getting into trouble is by declaring them "criminals" or trying to create uncovered categories. By declaring them "criminals" and bringing them into US jurisdiction, you are automatically typing them and, as such, they have the full protection of your constitution.We didn't try to create an uncovered category; we applied a covered category far too broadly, came up with an abysmally stupid plan to hold and interrogate and then developed a really dumb legal 'process' to attempt to cover the stupidity. We get max marks for stupid, no question -- but I disagree we've been illegal (other than in a very few specific individual cases -- and those were probable no matter what had been done :cool: ).

Ken White
06-05-2008, 03:15 PM
...On a more serious note, though, there has been a lot of international concern about the US governments position on international law in many areas, and the Gitmo experience (along with extraordinary rendition, etc.) only reinforces the concerns held by other countries (think Italy for a sec...). In Canada, we have been following the Gitmo travesty ever since Khadr was captured, and the ongoing French bedroom farce of his detainment makes headlines fairly often.True, our position on International Law has been subject to many blasts from the remainder of the world in my lifetime. Some warranted, some not -- those viewpoint dependent. Gitmo was stupid. Khadr has been mishandled by the ridiculous commission setup, no question but the fact that he was "a child soldier" who deserves release on that count is I believe wrong. He is said to be 'salvageable' and to have modified his attitude. Sorry, I'm an old cynic...

I do not disagree with your point, but I would hope that we could replace the motivation for doing the right thing. We ought not to be doing "the right thing so the world will see we're really nice." We ought to be doing the right thing just because it is the right thing. (Sorry if this sounds like I'm being naively idealistic ;))I agree with your goal but would point out that others do not operate that way and while some disadvantage to do the right thing can and should be accepted -- and we do that, all day and every day in many ways and knowingly and willingly give others an advantage -- there had better be limits or we will not be around to do the right thing. Thus, regrettably, I do suspect you're being a bit naively idealistic.

wm
06-05-2008, 03:29 PM
True, our position on International Law has been subject to many blasts from the remainder of the world in my lifetime. Some warranted, some not -- those viewpoint dependent. Gitmo was stupid. Khadr has been mishandled by the ridiculous commission setup, no question but the fact that he was "a child soldier" who deserves release on that count is I believe wrong. He is said to be 'salvageable' and to have modified his attitude. Sorry, I'm an old cynic...
I agree with your goal but would point out that others do not operate that way and while some disadvantage to do the right thing can and should be accepted -- and we do that, all day and every day in many ways and knowingly and willingly give others an advantage -- there had better be limits or we will not be around to do the right thing. Thus, regrettably, I do suspect you're being a bit naively idealistic.
I believe we both are aware that a nation's true motives are usually pretty transparent to the rest of the world. So perhaps the better position to take would be one that does not try to sugar coat what we are up to. Just like any other nation, the US is looking out for numero uno and, perhaps, sees this trial process as a way of not getting caught out in a similar series of "kangaroo court" activities against its own citizens without grounds for protest.

The fact of the matter might more likely be that we are trying these folks not because we want the rest of the world to think we are nice but because some part of our leadership needs to be able to live with its collective conscience and is now trying to justify bad actions after the fact. If I am correct in this line of thinking, then it also goes a long way to explaining the spate of recent "kiss and tell" and other funny justificatory books like McClellan's and Feiths that are coming out of the publishing houses.

Ken White
06-05-2008, 04:28 PM
I believe we both are aware that a nation's true motives are usually pretty transparent to the rest of the world. So perhaps the better position to take would be one that does not try to sugar coat what we are up to.Agreed and that was a large part of my point in the comment. I believe Churdhill had it right when he said "You can always rely on the Americans to do the right thing -- after they have tried every conceivable alternative." We do generally try but our governmental system is conducive to false starts and that is exacerbated by the bureaucracy -- and too often enhanced by stupidity in high places...
Just like any other nation, the US is looking out for numero uno and, perhaps, sees this trial process as a way of not getting caught out in a similar series of "kangaroo court" activities against its own citizens without grounds for protest.Perhaps, however my less benign take is that the lawyers screwed the pooch in the process.
The fact of the matter might more likely be that we are trying these folks not because we want the rest of the world to think we are nice but because some part of our leadership needs to be able to live with its collective conscience and is now trying to justify bad actions after the fact.That too is possible but I'm strongly inclined to believe that it's simply the aforementioned Churchill syndrome in action. As they say, never ascribe to evil what is due to stupidity.
If I am correct in this line of thinking, then it also goes a long way to explaining the spate of recent "kiss and tell" and other funny justificatory books like McClellan's and Feiths that are coming out of the publishing houses.Those types of apologia always appear after every traumatic event; self justification is strong instinct...:wry:

I'd submit that in the case of the two you cite, the former is indicative of the fact that those, like Bush (and a lot of Generals), who want 'people they know and trust' in positions of power are the progenitors of the Peter Principle and that the latter author is added proof of that, due to Cheney doing the same thing, as well with the fillip of a massive ego in government not being an asset.

We do the right thing far more often that not and that is a good thing. Generally when we do not do so it's due to a person; a squeaking wheel, in the wrong place at the wrong time who takes deliberate or inadvertent advantage of the governmental system and the bureaucracy to effect an action that he or she believes to be required. Usually, the system catches that, albeit slowly, then corrects itself.

Unfortunately, due again to the system, the correction is frequently an over correction, thus we seem to lurch about like a drunk from one extreme to the other before finally getting it right. It confuses the daylights out of the rest of the world who prefer to take it slow and easy and do not recognize that we are taking it slow -- just not easy. It's not the American way. :cool:

The annoying thing to me is that has been a feature (or a bug?) in our government for a great many years. Seems to me that a workaround for that should be developed. It could be easily done -- except for the fact that each new Administration will reject anything that has gone before and try to do it their way. That is just ego driven stupidity.

I can hardly wait until this time next year... :rolleyes:

marct
06-05-2008, 05:39 PM
Hi Ken,


True. Some. The issue is whether they are legal combatants as stipulated in the GC or not; they meet none of the criteria therefor. Oversight in the GC? Possibly but unquestionably they are not members of a uniformed military force.

This becomes a very interesting question - what is a "uniform"? It wasn't a problem back in the day, but I would submit that it is now. Staes are free to decide on what constitutes a "uniform", and I would argue that the Taliban, which whether we like it or not did form a state that was recognized by a few other countries and the UN, is free to choose what it is. I would argue that legally they are in the same position as a "government in exile". As such, any who wear their uniform (even if they define that as civilian clothes) must be offered the protection of the Geneva conventions analogous to the volunteer brigades in the Spanish Civil War. I know, it's not a popular argument :wry:.


What's ridiculous; the US position or the GC failure to protect illegal combatants?

Sorry, their definition as "illegal combatants". At the same time, the GC is vastly out of date and, in its categories, somewhat ridiculous.


True, sort of. The rules on illegal combatants say they've got to get sorted as PW or criminals and we blew that aspect. The Commissions are a cover for doing something too late and too little. Thus my contention they should've been called PW from the get go. The Admin didn't do that because they wanted to interrogate some of them which the GC prohibits. That could've been done had the control of those few been retained by other than the Armed Forces (an admittedly arguably illegal act -- but reality will intrude on legitimacy... :wry:

The problem with the sorting is that it doesn't really account for the current reality <sigh>. What is needed, IMHO, is a category of "irregular combatants" who are treated as POWs, but who may be interrogated to determine motivation and possibility for criminal charges based on international law.


True, our position on International Law has been subject to many blasts from the remainder of the world in my lifetime. Some warranted, some not -- those viewpoint dependent. Gitmo was stupid. Khadr has been mishandled by the ridiculous commission setup, no question but the fact that he was "a child soldier" who deserves release on that count is I believe wrong. He is said to be 'salvageable' and to have modified his attitude. Sorry, I'm an old cynic...

Nothing wrong with that :D. Still and all, Khadr met the UN definition of being a "child soldier". We can argue back and forth whether it is right or wrong in any individual case (or in general), but under existing international agreements, he meets the definition and law is all about definitions.

Tacitus
06-05-2008, 06:19 PM
The question is why are we bothering with holding trials (perhaps instead of summary execution) for people we just know are guilty of something.

Q: What do the following men all have in common?
Martin Bormann, Karl Donitz, Hans Frank, Wilhelm Frick, Hans Fritzsche, Walther Funk, Hermann Goring, Rudolph Hess, Alfred Jodl, Ernst Kaltenbrunner, Gustav Krupp von Bohlen und Halbach, Robert Ley, Baron Konstantin von Neurath, Franz von Papen, Erich Raeder, Joachim von Ribbentrop, Alfred Rosenberg, Fritz Sauckel, Dr. Hjalmar Schacht, Baldur von Schirach, Arthur Seyss-Inquart, Albert Speer, and Julius Streicher.

A: They were all accused of various war crimes and given trials at Nuremburg.

Not in some kangaroo court in an offshore Cuban penal colony, either. Evidence was presented, and they were given the opportunity to defend themselves against charges. It is because we are Americans. We have a suspicion against arbitrary arrests and imprisonment by either George III (or some possible home grown despot), dating back to the American Revolution.

Interestingly, von Papen and Schacht were acquitted.

I believe most people think that if you are holding somebody as a war criminal or terrorist kingpin, we have some kind of obligation to bring evidence in something like a fair public trial environment. Federal Court or some kind of Nuremberg style military tribunal will do. As it is, the perception is that we are running some kind of Star Chamber.

If we’re dealing with some guy who just happened to be in a Taliban militia, this all seems a bit overkill. What is the problem with just treating him as a POW or turning him over to the Afghan government, anyway, instead of trying to reinvent the legal wheel?

Ken White
06-05-2008, 06:48 PM
This becomes a very interesting question - what is a "uniform"? It wasn't a problem back in the day, but I would submit that it is now.Agreed but unfortunately, the GC is not designed to cope with today's modified realities so the Lawyers get to play.
...As such, any who wear their uniform (even if they define that as civilian clothes) must be offered the protection of the Geneva conventions analogous to the volunteer brigades in the Spanish Civil War. I know, it's not a popular argument :wry:.I agree. That's why I said the majority (including all the Talib) should've simply been declared PW and confined in Afghanistan. The real issue is with the non-Taliban types, the AQ folks who do not merit the protection you propose and the GC offers and with which I agree.
Sorry, their definition as "illegal combatants". At the same time, the GC is vastly out of date and, in its categories, somewhat ridiculous.Disagree on the former, agree on the latter -- I did however note that the Lawyers did not do the former at all well...
The problem with the sorting is that it doesn't really account for the current reality <sigh>. What is needed, IMHO, is a category of "irregular combatants" who are treated as POWs, but who may be interrogated to determine motivation and possibility for criminal charges based on international law.That might be possible though my suspicion is that any attempt to do that will be fought tooth and nail by the HR community.

Nothing wrong with that :D. Still and all, Khadr met the UN definition of being a "child soldier". We can argue back and forth whether it is right or wrong in any individual case (or in general), but under existing international agreements, he meets the definition and law is all about definitions.The UN is NOT a legislative body; they may propose things to their hearts content but they do not produce laws. Yes, Law is all about definitions or, more correctly, pocket lining arguments about definitions but it becomes sort of counterproductive when attempts to apply it fly in the face of common sense. A 15 year old can kill you just as dead as can a 30 year old.

Not to start a food fight but instead of looking down noses at the people who simply apprehended a 'child' being where he should not have been and doing something he should not have been doing and correctly in my view attempting to punish him for that, folks might want to look at the fact that the child had no business being there, had no business doing what he was doing and the fact that he was taken to that environment by his Father and possibly encouraged to do those things is not an excuse; the kid was in the wrong place at the wrong time and allegedly doing the wring thing -- and we did not put him there.

An attitude of excessive forgiveness of children for being little monsters has put the entire European hearth in danger of a takeover by the little dears. They need to learn that actions have consequences -- as do Parents who not only tolerate but actively encourage such foolishness (in this case criminality by the definition of the UN you say...). You youngsters will have fun with that, I'll be dead and gone so I'll miss it. :cool:

J Wolfsberger
06-05-2008, 06:50 PM
From the Third Geneva Convention:

"Part I. General Provisions

"Art.4 Prisoners of War ...

"(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:[ (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war."

and

"Art. 5. The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

"Illegal combatant" and "unlawful combatant" don't appear in the conventions. What people are trying to get at with the terms is whether an individual is protected by the conventions. The US has, in fact, provided "the protection of the present Convention" to the detainees at Gitmo. The term "kangaroo court" is a dishonest slur on the US attempt to, in fact, bring the detainees before a tribunal to determine their status, in accordance with Art. 5. of the Third Geneva Convention.

marct
06-05-2008, 07:50 PM
Hi Ken,


That's why I said the majority (including all the Talib) should've simply been declared PW and confined in Afghanistan. The real issue is with the non-Taliban types, the AQ folks who do not merit the protection you propose and the GC offers and with which I agree.

Unfortunately, AQ might, and I say that advisedly and with much gnashing of teeth, fall under the "other militias" clause. Totally agree that the Taliban should have been declared POWs which, BTW, would include Khadr.


The UN is NOT a legislative body; they may propose things to their hearts content but they do not produce laws. Yes, Law is all about definitions or, more correctly, pocket lining arguments about definitions but it becomes sort of counterproductive when attempts to apply it fly in the face of common sense. A 15 year old can kill you just as dead as can a 30 year old.

Disagree with the first, but agree with the rest :wry:. The problem with most supra-national bodies is that they have what, for want of a better term, might be called "para-legislative" powers - they are legislative upon states, not individuals. It's awkward in oh so many ways...


Not to start a food fight but instead of looking down noses at the people who simply apprehended a 'child' being where he should not have been and doing something he should not have been doing and correctly in my view attempting to punish him for that, folks might want to look at the fact that the child had no business being there, had no business doing what he was doing and the fact that he was taken to that environment by his Father and possibly encouraged to do those things is not an excuse; the kid was in the wrong place at the wrong time and allegedly doing the wring thing -- and we did not put him there.

You know, we really do agree on a lot of things :D! Personally, I have no problems with that - in fact, I have a lot of problems with a mind set that says "Oh, he must be a victim!". Where we disagree is in whether or not our disgust with victim poker outweights the agreements our countries have signed on the rights of child soldiers. I'm not ready to call the Crown to account on that one.


An attitude of excessive forgiveness of children for being little monsters has put the entire European hearth in danger of a takeover by the little dears. They need to learn that actions have consequences -- as do Parents who not only tolerate but actively encourage such foolishness (in this case criminality by the definition of the UN you say...). You youngsters will have fun with that, I'll be dead and gone so I'll miss it. :cool:

Ken, I'm sure that you will stick around just so you can say "I told you so!!!!" :D. Actually, we agree on the need for children to learn that their actions have consequences. Then again, with such sterling role models as Doug Feith around, that may be a touch tricky...

JJackson
06-05-2008, 08:17 PM
why are they illegal anything?
If some AQ were moving through the area and thought my house was a good place for an ambush and the US troops found me cowering under my bed - assuming they did not shoot me on the spot - I would presumably spend the next decade trying to convince some GITMO guard I had not planned 9/11.
If I declare Ken an illegal combatant can I lock him up indefinitely? We disagree from time to time but I am not sure that would be very fair.

Ken White
06-05-2008, 08:48 PM
...Totally agree that the Taliban should have been declared POWs which, BTW, would include Khadr.True. Then he'd be a PW with no reason to be tried and no hope of release until the end of hostilities...
... The problem with most supra-national bodies is that they have what, for want of a better term, might be called "para-legislative" powers - they are legislative upon states, not individuals. It's awkward in oh so many ways...Awkward perhaps but even the para legislative powers upon states is there only if the state(s) deign to accept them. For more on which see below.
...Where we disagree is in whether or not our disgust with victim poker outweights the agreements our countries have signed on the rights of child soldiers...You are aware the US has not ratified some of those protocols? One we and Canada have ratified is the Optional Protocol on the Involvement of Children in Armed Conflict, which requires signatories to 'take all feasible measures' to ensure that children under age 18 do not participate in hostilities... ??? :wry:
... Then again, with such sterling role models as Doug Feith around, that may be a touch tricky...Ordinarily, I would not stoop to citing Maxime or Alphonse as examples that such dimwits abound worldwide but Fido Feith had nothing to do with the discussion. :D

Or, if he did, I missed the connection,,,

Rex Brynen
06-05-2008, 09:02 PM
Nothing wrong with that . Still and all, Khadr met the UN definition of being a "child soldier". We can argue back and forth whether it is right or wrong in any individual case (or in general), but under existing international agreements, he meets the definition and law is all about definitions.

The UN is NOT a legislative body; they may propose things to their hearts content but they do not produce laws. Yes, Law is all about definitions or, more correctly, pocket lining arguments about definitions but it becomes sort of counterproductive when attempts to apply it fly in the face of common sense. A 15 year old can kill you just as dead as can a 30 year old.

The UN does actually, under some circumstances, produce laws--both in the sense that UNSC resolutions are (supposedly) binding on members states, and in that UN conventions comprise treaty law which are, when entered into by the Execute and duly ratified by the US Congress, comprise US law under Article VI.2 of the US Constitution.

That's a quibble, however ;)

The Optional Protocol to the Convention on the Rights of the Child (http://www.unhchr.ch/html/menu2/6/protocolchild) (2002) prohibits the recruitment or use of children in armed conflict, but doesn't actually say what you are supposed to do when you capture one, beyond stating (rather ambiguously):


States Parties shall take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to the present Protocol are demobilized or otherwise released from service. States Parties shall, when necessary, accord to such persons all appropriate assistance for their physical and psychological recovery and their social reintegration.

One could argue that incarceration in Gitmo is "demobilization" of a sort (although I wouldn't).

More broadly, there are several reasons for playing by the rules of international humanitarian law:


Reciprocity--because you want others to. Of course, its doubtful AQ will, but nonetheless one doesn't want to erode global norms that may be useful in other contexts.

Because you agreed to, and you don't want to erode your credibility in future treaty negotiations.

Because of the political costs of not doing so (for example, the enormous cost of IHL violations at Abu Ghreib), or the political gains from doing so. I would argue that Gitmo policies and procedures have been a significant self-inflicted wound for the US, although I recognize that the issue is an inherently difficult one.

Because its the right thing to do. I actually think this is important.


I've noticed a tendency in many milblogs (not here) to treat IHL as an evil concoction by lawyers who are perversely seeking to prevent "us" from winning. Yet (military and civilian) international lawyers, diplomats, and technical experts involved in treaty negotiation are some of the smartest, best-informed people that I've ever known. Their IHL work involves trying to balance the considerations above, national interest, the compromises of diplomatic-legal coalition-building, and (to the extent they can) the "greater good" in a way that leaves us off better off than we were before--which, given the competing interests, complexity, and evil-doers involved, is no easy task.

There, having established my credentials as a defender of the indefensible (lawyers), I'll next defend the Air Force... :D

Ken White
06-05-2008, 09:03 PM
why are they illegal anything?Dunno; their choice and I long ago stopped trying to figure motives in people...

If some AQ were moving through the area and thought my house was a good place for an ambush and the US troops found me cowering under my bed - assuming they did not shoot me on the spot - I would presumably spend the next decade trying to convince some GITMO guard I had not planned 9/11.Only if you had a particularly poor batch of US Troops find you; most exercise some discrimination and if they err, tend to err on giving your story the benefit of the doubt. That is to say far more bad guys talk their way out of a bad spot then are wrongly caught.
If I declare Ken a non combatant can I lock him up indefinitely? We disagree from time to time but I am not sure that would be very fair.Well, you could, I guess but I don't know why you'd lock up a non combatant; we try to avoid that, mostly successfully and concentrate on locking up combatants -- the issue du jour being whether they are 'illegal' or legal combatants.

That involves the Geneva Convention and those provisions that state aside from combatants (pictured as military force against military force; out of date but there it is), other individuals, including civilians, who commit hostile acts and are captured do not have the protections of the GC. Rightly or wrongly, the US decided to label people in that category 'illegal combatants.' Gives the Lawyers something to do...

Ken White
06-05-2008, 09:24 PM
The UN does actually, under some circumstances, produce laws...That's a quibble, however ;)A valid one. However, the UN item acquires the force of law only as it is codified by the ratifying state -- and the US is notorious for not ratifying or placing many exceptions in its ratification process.
More broadly, there are several reasons for playing by the rules of international humanitarian law:...I agree with all those. As I said, we may or may not be legal; I'll leave that to the Lawyers, not my field -- but we sure weren't smart (and I minored in Stupidity...).
I've noticed a tendency in many milblogs (not here) to treat IHL as an evil concoction by lawyers who are perversely seeking to prevent "us" from winning. Yet (military and civilian) international lawyers, diplomats, and technical experts involved in treaty negotiation are some of the smartest, best-informed people that I've ever known. Their IHL work involves trying to balance the considerations above, national interest, the compromises of diplomatic-legal coalition-building, and (to the extent they can) the "greater good" in a way that leaves us off better off than we were before--which, given the competing interests, complexity, and evil-doers involved, is no easy task.Nor do I disagree with that -- with the caveat that excessive idealistically derived but legitimate humanitarian concerns sometimes have effects that are not what the originators envisioned. See Steyn, M. and Section 13.1 of the Canadian Human Rights Act. Comes under the heading, I believe, of 'be careful what you wish for, you may get it...'
There, having established my credentials as a defender the indefensible (lawyers), I'll next defend the Air Force... :DMasochist! ;)

wm
06-05-2008, 09:56 PM
The term "kangaroo court" is a dishonest slur on the US attempt to, in fact, bring the detainees before a tribunal to determine their status, in accordance with Art. 5. of the Third Geneva Convention.
If this last is in reference to my use of the phrase 'kangaroo court' in a previous post, please note that I put the phrase in double quotes, which is a fairly common convention for identifying that the wording is being applied in a non-standard way. Double quotes are used to indicate that such an attribution of the noun phrase is a degenerative case, not a standard use for the phrase. I do not view the Gitmo Tribunal as a kangaroo court. I was suggesting that part of the US motivation for holding trials might be very pragmatic--to try to prevent other entities from holding kangaroo court proceedings with US citizens as "defendants." (Please again note the use of the double quotes--a person being charged by a kangaroo court is hardly one to whom the appelation 'defendant' is appropriately applied.)

BTW, I concur with Rex's 4 reasons for abiding by and supporting IHL. I just happen to arrange them in a different priority order. I'd rank the 4 reasons in order of importance as 4, 2, 1, 3 (and 2 is actually a subcategory of 4--it is an example of keeping a promise, which is just another right thing to do.)

BTW, I follow a linguistic convention in the philosophy of logic and language with my use of single quotes. They are being used as a way of differentiating between using a word or phrase as an operative part of a sentence and mentioning that word or phrase--that is, using the words as a name for the word or phrase found inside the single quotes. For example, snow refers to the white stuff on the ground; 'snow' refers to the name we use for the white stuff on the ground.

Ken White
06-05-2008, 10:31 PM
As you say, "snow refers to the white stuff on the ground;" or "snow" as you say is the white stuff on the ground while that white stuff that appears on the ground in winter is usually snow.

Yet 'snow' refers to the name we use for the white stuff on the ground while the white stuff on the ground is apparently snow but 'snow' also refers to other white stuff that can put one on the ground.

I'm snowed, I think I'll go get a drink... :D

Schmedlap
06-06-2008, 01:05 AM
If, as the Bush administration has held, they are not "legal combatants", then what are they? The rhetorical answer was to call them "criminals", but even criminals have rights under international laws to which the US is a signatory...
A second and, IMO, more important reason stands behind all of the rhetoric: by attempting to declare these people as "non-persons" and outside of the law, they are being defined as "non-human" and, hence, anything done to them is fine. But, if history teaches us anything, every time a society has defined one group of people as non-humans (i.e. outside the law), that same society will turn around and define other groups the same way.
Forgive me if this is an exceedingly dumb question, but I am a pretty unsophisticated observer of legal whatnot, especially the international variety (but I think that my input is useful because I tend to have the same confusion over this issue that most average schmoes do). So long as the "war on terror" continues, why is it not permissible to simply keep these folks locked up? Isn't standard practice to keep POW's in detention until hostilies cease? It also seems to me that, rather than haggling over the current interpretations of international law, we should be pushing for revisions. In the past, we coerced a nation into submission and then their military hierarchy diseminated the order to cease hostilities. That cannot occur now, as al-Qaeda and similar organizations do not function this way, so it seems that we need to update our laws in order for them to be workable.


As far as them being non-US citizens, that is immaterial. They have been captured by US troops and, unless you wish to argue that US troops are not bound by laws when in foreign countries, they have to be treated under a rule of law scenario. If they are captured during a "time of war" then they should be treated under the Geneva Conventions or else the US is breaking those conventions.
Understood, but there are a fair number of people who think that they should be tried in our court systems, as if they were normal defendants in a criminal case. That was my reason for emphasizing their non-US status.


Where you (the US) are getting into trouble is by declaring them "criminals" or trying to create uncovered categories. By declaring them "criminals" and bringing them into US jurisdiction, you are automatically typing them and, as such, they have the full protection of your constitution.
That sounds about right, even to my unsophisticated brain. The lawyers seem to outnumber the chiefs and the indians.

jmm99
06-06-2008, 03:23 AM
I love Ken White's "... the Lawyers totally blew it in an effort to outsmart themselves." We do that everyday; but it's not always noticed ! :)

Also, like Wolfsberger's quoting the GC provisions - RTFO is a good rule.

The two L & C articles most pertinent to the present discussion seem to be:

Tung Yin, Enemies of the State: Rational Classification in the War on Terrorism, 11 Lewis & Clark L. Rev. 903 (2007)
http://www.lclark.edu/org/lclr/objects/LCB_11_4_Art3_Yin.pdf

Mark Weisburd, Al-Qaeda and the Law of War, 11 Lewis & Clark L. Rev. 1063 (2007)
http://www.lclark.edu/org/lclr/objects/LCB_11_4_Art8_Weisburd.pdf

Despite being a U of M law grad, Weisburd's Conclusion seems quite rational. ;)

Tacitus and I have to talk about the Nuremburg and Tokyo trials someday - but not today.

Also, Jedburgh citation of Rand's James Renwick, Gregory F. Treverton, The Challenges of Trying Terrorists as Criminals (2008), provides an overview of the practical procedural problems in the "Common Law, Magna Carta" jurisdictions.
http://www.rand.org/pubs/technical_reports/2008/RAND_CF249.pdf

Tacitus
06-06-2008, 01:39 PM
If some AQ were moving through the area and thought my house was a good place for an ambush and the US troops found me cowering under my bed - assuming they did not shoot me on the spot - I would presumably spend the next decade trying to convince some GITMO guard I had not planned 9/11.

I’ll take a crack at this one. If grabbed as a suspected terrorist by US troops, I don’t know who decides you go to Gitmo. Or how it is decided. But, it seems possible, if whoever thinks you belong there has the power to make it happen. The accusation or suspicion or terrorism, itself, provides sufficient justification for you to be held there.

Once you get your orange jumpsuit, you’ll have plenty of time to ruminate. Martin Luther King, Henry David Thoreau, and Adolf Hitler all decided to write about their circumstances while behind bars. I don’t know if you’d be allowed that privilege, or not. I haven’t noticed any jailhouse manifestos from Gitmo in my local bookstore, yet.

Tacitus' opinions don't carry much weight, of course. Of more importance on this issue, let's hear what Senators Obama and McCain think about this.
http://www.cfr.org/publication/14751/candidates_on_military_tribunals_and_guantanamo_ba y.html?breadcrumb=%2Fcampaign2008%2Ftrackers
Both of these gentlemen have several times said they plan to shut this thing down, Obama suggesting trying the accused in a U.S. criminal court or by a military court-martial. I think McCain has suggested just moving this thing to Fort Leavenworth, and using what is already in place there.

Since your case is unlikely to be resolved before Inauguration Day (January 20, 2009), there’s a fair chance you’ll have your day in court somewhere else.

I wouldn't take any false comfort from that, though. They probably wouldn't have grabbed you for nothing, and might could get you on a charge of spying for terrorists, if not being one, yourself. The last British spy that I remember us dealing with was Major John Andre. He was denied a soldier’s death by firing squad, and instead hung. And he wasn’t even Al Qaeda.:eek:
http://en.wikipedia.org/wiki/John_Andr%C3%A9

marct
06-06-2008, 03:13 PM
Hi Schmedlap,


Forgive me if this is an exceedingly dumb question, but I am a pretty unsophisticated observer of legal whatnot, especially the international variety (but I think that my input is useful because I tend to have the same confusion over this issue that most average schmoes do). So long as the "war on terror" continues, why is it not permissible to simply keep these folks locked up? Isn't standard practice to keep POW's in detention until hostilies cease?

On the surface, it makes sense. The unfortunate thing is that "terror" is not a nation state. How can that "war" end? Will the President for Life of "Terror" sign a peace treaty :wry:? Sorry, the sarcasm is coming from being incredibly frustrated with the confusion caused by assuming rhetoric as reality - it's certainly not with you or your question!!!

The GCs assume a state on state conflict, so keeping someone as a POW makes sense, and they can be returned after the end of hostilities. I do think that the Taliban should be counted as a "government" (government in exile). For them, and their fighters, this would mean that the "war" would end IFF (if and only if) they are brought back into negotiations with the Afghan government and some accommodation is reached. AQ and the other irhabi groups are another matter...


It also seems to me that, rather than haggling over the current interpretations of international law, we should be pushing for revisions. In the past, we coerced a nation into submission and then their military hierarchy diseminated the order to cease hostilities. That cannot occur now, as al-Qaeda and similar organizations do not function this way, so it seems that we need to update our laws in order for them to be workable.

I definitely agree that we need to change international law and the GCs to account for the current reality. We have to be able to account for para-state groups such as Hamas, Hezbollah, etc. as well as groups of the irhabi-network types. It might be an idea to go back to examine the situation in the Holy Roman Empire just after the Treaty of Westphalia and use that as an example for further consideration. After all, you had a really odd situation where "states" were members of another "state" (the HRE).


Understood, but there are a fair number of people who think that they should be tried in our court systems, as if they were normal defendants in a criminal case. That was my reason for emphasizing their non-US status.

Hmmm, I think the problem is with the precedent being established. For example, there is a general agreement that citizens of one country may be tried by the legal system of another country for crimes committed in their jurisdiction and will enjoy all the legal protections of the country in which they are tried. There is also precedent for trying your citizens for actions in another country that contravene the laws of your country. But there really isn't much of a legal precedent for holding citizens of one country with whom you are not at war without trial.

Khadr, and I'm sticking with him right now, is a Canadian citizen and his continued incarceration in Gitmo is being viewed by some as a breach of treaties with Canada. Think about it for a second.. If we captured a US citizen in Afghanistan fighting as a Taliban and held him in Canada without trial, what would the US reaction be?

JJackson
06-06-2008, 03:15 PM
They probably wouldn't have grabbed you for nothing

This is the part of the process that bothers me.
I have never been in a situation like this but assume it is fairly chaotic. Some of the insurgents will be local, some from further afield and if the engagement is in a town or village will include a whole spectrum from completely uninvolved through sympathisers, non combatant supporters, lookouts, fighters and their commanders. I assume they all get rounded up and all claim innocence then what? How many were just in the wrong place at the wrong time and if they are not going to get a hearing then how can they escape the nightmare? This war (if that is what it is) is already as long as WWII as far as I can see very few of those interned have any kind of evidence against them that could stand up in a court of law. Most seem to have just been released despite serving hundreds of man/years between them.
In the UK we had a whole spate of IRA miscarriages of justice releases and apologies for fabricated evidence against individuals who the police 'knew' were guilty but could not provide evidence. With the public baying for blood and their superiors for convictions, they just helped the cases along. This is very understandable given the circumstances at the time, but also very wrong.
As you may have gathered I am not inclined to give the authorities the benefit of the doubt and am much more frightened of tyrannical governments than terrorists.

Tacitus
06-06-2008, 03:45 PM
JJackson: I hear you loud and clear about not trusting what a government says about people in jail, just because it says so. It doesn't mean they are innocent, just that nobody has proven anything. You know this, “Well, if the government is holding them, they must be guilty of something” argument. What’s lurking behind behind this has to do with how strongly a person feels about habeas corpus. Obviously, some don’t feel it is such a big deal--at least as long as somebody else is on the business end of it. You might count Abe Lincoln in that category. But that is a different thread.

Warning to any Lurkers: Ancient History Follows. But it is a pretty interesting story.

Once upon a time, the British created their own version of Guantanamo Bay, and dispatched undesirable prisoners to garrisons off the mainland, beyond the reach of habeas corpus relief. The man who did this was Edward Hyde, 1st Earl of Clarendon. Lord Clarendon is buried in Westminster Abbey. He was, for want of a better word nowadays, what would probably be called today the Prime Minister, and he was the main advisor to the king in a civil war in which the king was killed.
http://en.wikipedia.org/wiki/Edward_Hyde%2C_1st_Earl_of_Clarendon

There were two sides. You’ve got the monarchists, and then you’ve got the Puritans, who murdered the king because they said the kingdom was debauched and decadent. We Americans see Puritans as kindly settlers sitting down to Thanksgiving dinner. Brits loyal to the king saw them as SOBs and religious fundamentalists. Puritans believed all they had to do was overthrow the government, and the reign of Jesus Christ would come once more among them. So this was sort of a battle of civilizations, a battle of religious ideologies.

Some of the Puritans were among the most persecuted after the restoration of the monarchy. This is when the whole sending people away to offshore islands took place. Consider what it might have felt like for Clarendon and the monarchists. They’d been in exile for years. Many of their friends and supporters had been locked up or killed. The Puritans had been vicious; they had killed the king. And many of them who had done it were still at large, plotting out there. Clarendon may have been paranoid. The Monarchists saw plots everywhere. But some people said they had good reason to be paranoid.

The exact location of Lord Clarendon’s Gitmo is unknown. Historians think it was probably in Jersey or Guernsey, which today are nice seaside tax havens for the very rich. But suspending habeas corpus didn’t work out well for Lord Clarendon. He was impeached. At his impeachment trial, he was accused of sending people away to “remote islands, garrisons and other places, thereby to prevent them from the benefit of law, and to produce precedents for the imprisoning of any other of his majesty’s subjects in like manner.” He had to get the hell outta Dodge and move to France.

The outcome of all of this was the Habeas Corpus Act of 1679, which specifically forbade what Clarendon had done, and made it illegal to send a prisoner into “Scotland, Ireland, Jersey, Guernsey, Tangier or into parts, garrisons, islands or places beyond the seas which are, or any time hereafter shall be within or without the dominions of His Majesty.”
http://en.wikipedia.org/wiki/Habeas_Corpus_Act_of_1679

Schmedlap
06-06-2008, 04:02 PM
This war (if that is what it is) is already as long as WWII as far as I can see very few of those interned have any kind of evidence against them that could stand up in a court of law. Most seem to have just been released despite serving hundreds of man/years between them.
And among those released, several returned to the field of battle and were captured yet again or detonated themselves and killed many innocent civilians. On the other hand, some just returned to a normal life. And that is why this is not such a clear issue regarding humane treatment of detainees. We've taken tens of thousands of detainees in Iraq/Afghanistan, yet less than one-thousand are at Gitmo and several thousand of the rest have been released. This information does not lead me to the suspicion that we're spending millions of dollars on the Gitmo detainees just to satisfy someone's desire to oppress or torture. I have the suspicion that we are incurring this expense and this loss of political capital for some legitimate reason, rather than for the sake of watching the President's approval ratings plummet. I suspect that our government is speaking truthfully when it says that there is good reason to believe that these folks are extremely dangerous. Hence, I do not lose much sleep at night over the thought that some Gitmo detainees are uncomfortable because their thermostat is at 66 instead of 68 and their eggs were served over easy instead of sunny side up.


This is very understandable given the circumstances at the time, but also very wrong.
That is why much of this falls into the category of "moral dilemma" - there is no correct answer.


As you may have gathered I am not inclined to give the authorities the benefit of the doubt and am much more frightened of tyrannical governments than terrorists.
This may be one of the areas in which representative democracy works best. Lots of people like you will clamor for action from one side of the issue. Lots of people from the other end will clamor for action on their side. This continual back and forth helps to provide corrective adjustments to the actions of the government that you fear, as it deals with the terrorists whom others fear.

jmm99
06-06-2008, 07:51 PM
re: JJackson - ... then what? ... how can they escape the nightmare?

This is generic, not aimed at US military policies and procedures. Just some blah-blah from a knuckle-dragging neanderthal, who prefers the compamy of "chiefs and indians" over lawyers.

1. Assume village complex X, ca. 500 pop., designated as insurgent (I) controlled, with possible classifications (with probable overlaps and shadings between classes):

IPI (insurgent political infrastructure)
IMF (insurgent main force)
IAF (insurgent auxilliary force)
ILF (insurgent logistics force - money & materiel)
IS (insurgent sympathizers)
NEU (neutrals)
CIS (counterinsurgent sympathizers - known & potential)

Assume CIF (counterinsurgency force, strike and screening components integrated) sufficient to execute tasks - no time, money, personnel and logistic constraints.

2. CIF tasked with (1) secure area; (2) intern population; (3) census population; (4) dossier each person in population; (5) screen & classify each person in population; (6) adjudicate each person's status and initial disposition by on-site CIF; (7) transfer dossier (and person, if applicable) to higher-level CIF.

3. Tasks (1) and (2) are military issues; the remaining tasks are paramilitary and police functions. Forms and procedures would vary with the military culture. Some points:

a. Preservation of evidence and witnesses; co-ordination between strike and screening components, if separate units, especially as to IMF and IAF suspects (evidence most likely from strike foirce personnel as to armed combatant status).

b. Reasons stated for classification ("probable cause" - not necessarily in a strict judicial sense). Responsibility on officers and senior NCOs.

c. Reasons stated for adjudication (on-site). Bring in the prosecutor and judge - no way; police officers do this every day. Possible adjudications: (1) release with possible follow-up; (2) transfer to a higher level (IMF persons, for example); (3) execution (assuming military and civil culture allows that; cf., Trinquier's concepts of "confession and redemption" for terrorists, pp. 17-20).

d. Persons transferred are Ps (not PW/POWs). Standards of treatment based on military culture. Possibly, a person could be subject to both criminal justice and military administrative processes. A person, as a criminal or combatant, should be an OR (inclusive "or"), not an XOR (exclusive "or").

e. End status and disposition of a P determined at higher-level CIF, based on the initial record (a-c above) and on-site adjudication, with later acquired data (if any). At that point, IHL, citizenship and other I Law issues may well come to the fore.

4. Logistics and personnel; you get what you pay for.

5. Timeline is not a quick in and out, since multiple steps are involved. A large amount of discretion has to be vested in on-site officers & senior NCOs. If you can't trust them (as a group), your system is shot to hell and FUBAR, anyway. And, their actions are subject to higher-level review (where standard principles of administrative control and review apply).

jmm99
06-08-2008, 01:30 AM
1. Country Study.

We have some of the picture of Village X, and of some Ps moving toward higher-level CIF; but we need a bit of background for our fairy tale.

Village X is located in the independent nation of Flatland. That name from the 1884 math "sci-fi" book which describes the culture of a 2-dimensional world.

http://en.wikipedia.org/wiki/Flatland

Flatland's government is strongly "libertarian" (but still has a military). The insurgency is strongly "statist". Thus, they are 180 degrees out of phase on the "diamond test".

http://www.theadvocates.org/quiz.html

The insurgency has an ideological cause supported by many arguments. The incumbancy has a ideological counter-cause also supported by many arguments. The majority of Flatlanders are political sheep. For present purposes, there are no external "Powers" or "Parties" involved in the conflict.

Flatland, like many countries, has a well-developed civil and military jurisprudence: Uniform Code of Civil Justice (UCCJ) and Uniform Code of Military Justice (UCMJ). Flatland also is a signatory to the 1949 GCs, and has ratified them, subject to reservations as to some key provisions.

Flatland's Constitution derives all delegated powers from its people (non-delegated powers being reserved to them). It is the Supreme Law of the Land, which trumps inconsistent internal laws. It also trumps treaties and executive agreements which are inconsistent with either its substantive or interpretative principles (e.g., among the latter, "void for vagueness"). All of this drives I Law theorists nuts because I Law derives its "powers" from states, not from the people of the World.


2. Problems Dealing with the Insurgency

The over-riding concern of Flatland's libertarian government lies in the fact that the available tools to quash the insurgency are - well, frankly - authoritarian. So, the incumbancy must use "statist" methods to crush a "statist" ideology, so as to preserve a "libertarian" ideology ! Will the baby be tossed out with the dirty bath water ? The government's conclusion is: probably not; but we have to be damned careful.

Part of this problem is how to proceed with Ps in detention, adjudication and final disposition. The Flatland government is willing to trust its military to initiate the process to separate the goats (IPI, IMF, IAF, ILF), who may be detained (some could be released for tactical reasons); from the sheep (IS, NEU, CIS), who will be released.

That phase (above post) involves preservation of evidence and witnesses; as well as two administrative adjudications of probable factual status (e.g., IPI, IMF, IAF, ILF), with routing to appropriate detention centers based on each person's dossier. The question is what to do when they get there.

Flatland's government considered use of its UCCJ and UCMJ at that time point. Those codes are fine for their intended use (and provide more safeguards for the accused than exist in most other nations). However, they are designed to remedy the acts or omissions of individuals (civilian or military); so, the civil and military courts, both procedurally and substantively, are not well-designed to adjudicate what are, in essence, networked group military or paramilitary actions.

Moreover, Flatland's government had a greater, long-term concern: "taint" of its UCCJ and UCMJ jurisprudence (for its non-insurgent civilians and military) by decisions made in insurgency cases. Hard cases make bad law. In short, the emotional response to the insurgency could in the end destroy much that is essential to Flatlander jurisprudence and liberties.

The decision was made to institute a Uniform Code of Insurgency Justice (UCIJ), with a separate administrative adjudicative process. That, in general, presented no inherent constitutional problems since Flatland has many administrative agencies with administrative law judges (and its UCMJ is administrative, as well). The government's problem was how to design and implement the UCIJ.


3. Specific Problems under the UCIJ

1. The persons to be adjudicated are detained members of these factual classes, IPI, IMF, IAF and ILF. The majority view in the government was that in all of those classes could be found persons who took an "active part in the hostilities." That view was based on the insurgency's own doctrine of "4GW" and its networked nature, where the IPI and ILF were equally or more important to the end result than the IMF and IAF. The majority concluded that common Art. 3, GCs 1949 does not apply to make them "protected persons" (as well as questioning whether Art. 3 is "void for vagueness"). However, the majority was not adverse to incorporating provisions of Art. 3 into the UCIJ on an item by item basis.

2. The minority positions were along two tracks. One was to find "protected person" status under Art. 3 for all IPI, IMF, IAF and ILF persons, except those who had not "laid down their arms". One soldier asked: "So, this SOB takes two shots at me; tosses his shotgun to the ground; jumps down from the tree; and says, 'sorry, I'm now a protected person.'" Another view (a totally separate track from the Art. 3 track) was to treat the insurgency as a recognized belligerancy, with full PW/POW status granted to its "armed forces" (the IPI, IMF, IAF and ILF, most broadly construed).

3. Agreement was better as to the administrative court and phases of adjudication: (1) a preliminary hearing after the person reached the detention center before an administrative judge to present the substantive charges, determine "probable cause" to hold, and the person's legal status issues, if any; and (2) a trial on the charges before a larger panel of judges. Flatland's UCMJ was rifled for much of the UCIJ's procedures. But, the on-going insurgency required consideration of security clearances and intelligence issues, which were not fully resolved. Also, the final "military-civilian" composition of the trial courts remained open - a number of agencies wished to get into the act.

4. Agreement was generally reached on substantive law; that is, the possible charges and punishments that might be - by adopting a sliding scale of crimes and punishments (from major to minor). An unresolved debate was on the extent to use the death penalty ("we shoot insurgents, don't we ?), or whether to use it at all. A further debate (among death penalty proponents) was about the level where it could or should be imposed (by now, we have four levels of adjudications: on-site military, higher-level military, prelim hearing, trial). Thoughts of Breaker Morant lurked in some minds.

5. Some controversy existed as to interrogation of detainees (if to be allowed at all; if so, the extent allowed); the extent of "coercion" allowed; and the time lapses between adjudications (to allow interrogations), etc. A small, but very vocal, minority expressed a belief that "confession brings redemption" (even if torture be required), following the quasi-religious theory found in Roger Trinquier, Modern Warfare (Praeger 2006), pp.17-20.


Can you help the Flatlanders solve their problems ?

jmm99
06-13-2008, 12:18 AM
For those who might be interested:

http://supremecourtus.gov/opinions/07pdf/06-1195.pdf

:confused:

As I started writing this, 4 political pundits were screaming at each other about this case. No way any of them could have read the case, much less considered it.

Here are the key portions of the holding, as opposed to the dicta:

Cite as: 553 U. S. ____ (2008),

p. 65 (slip):

"In cases involving foreign citizens detained abroad by the Executive, it likely would be both an impractical and unprecedented extension of judicial power to assume that habeas corpus would be available at the moment the prisoner is taken into custody. If and when habeas corpus jurisdiction applies, as it does in these cases, then proper deference can be accorded to reasonable procedures for screening and initial detention under lawful and proper conditions of confinement and treatment for a reasonable period of time."

p. 66 (slip):

"Our decision today holds only that the petitioners before us are entitled to seek the writ; that the DTA review procedures are an inadequate substitute for habeas corpus; and that the petitioners in these cases need not exhaust the review procedures in the Court of Appeals before proceeding with their habeas actions in the District Court. The only law we identify as unconstitutional is MCA §7, 28 U. S. C. A. §2241(e) (Supp. 2007). Accordingly, both the DTA and the CSRT process remain intact."

p. 66-67 (slip):

"Our holding with regard to exhaustion should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. The Executive is entitled to a reasonable period of time to determine a detainee’s status before a court entertains that detainee’s habeas corpus petition. The CSRT process is the mechanism Congress and the President set up to deal with these issues. Except in cases of undue delay, federal courts should refrain from entertaining an enemy combatant’s habeas corpus petition at least until after the Department, acting via the CSRT, has had a chance to review his status."

p. 67-68 (slip):

"We make no attempt to anticipate all of the evidentiary and access-to-counsel issues that will arise during the course of the detainees’ habeas corpus proceedings. We recognize, however, that the Government has a legitimate interest in protecting sources and methods of intelligence gathering; and we expect that the District Court will use its discretion to accommodate this interest to the greatest extent possible."

p. 68 (slip):

"These and the other remaining questions are within the expertise and competence of the District Court to address in the first instance."
So, this seems only the first stage of a longer process. There seems an implication that Congress should amend the statutes to provide a better administrative adjudicative procedure.

Justices Roberts' and Scalia's dissents are worth reading. Roberts is more of a practical and less emotive bent.

jmm99
06-14-2008, 10:50 PM
A number of different views on Boumediene and Omar-Munaf (see below) are found at Opinio Juris:

http://www.opiniojuris.org/posts/chain_1213336401.shtml

That discussion seems likely to continue.

--------------------------------------
Omar-Munaf is the case most directly applicable to OIF. Excellent opinion by Justice Roberts with no dissents ("cautionary" concurrence by Justices Souter, Ginsberg & Breyer):

http://www.scotusblog.com/wp/wp-content/uploads/2008/06/06-1666.pdf

Note that Justice Roberts, after finding jurisdiction to hear the habeas petition, felt that the circumstances required a prompt decision on the merits of the habeas petition (slip p.14, and following). Which is exacly what he did:


(slip p.28)

Munaf and Omar are alleged to have committed hostile and warlike acts within the sovereign territory of Iraq during ongoing hostilities there. Pending their criminal prosecution for those offenses, Munaf and Omar are being held in Iraq by American forces operating pursuant to a U. N. Mandate and at the request of the Iraqi Government. Petitioners concede that Iraq has a sovereign right to prosecute them for alleged violations of its law. Yet they went to federal court seeking an order that would allow them to defeat precisely that sovereign authority. Habeas corpus does not require the United States to shelter such fugitives from the criminal justice system of the sovereign with authority to prosecute them.

For all the reasons given above, petitioners state no claim in their habeas petitions for which relief can be granted, and those petitions should have been promptly dismissed. The judgments below and the injunction entered against the United States are vacated, and the cases are remanded for further proceedings consistent with this opinion.

It is so ordered.

marct
06-18-2008, 11:35 AM
From CBC.ca



Guantanamo detainees were tortured, medical exams show
Last Updated: Wednesday, June 18, 2008 | 5:31 AM ET
The Associated Press

Medical examinations of suspected militants formerly held by the U.S. military at the Guantanamo Bay detention centre in Cuba showed evidence of torture and other abuse that resulted in serious injuries and mental disorders, according to a human rights group.

The study, considered the most extensive medical check of former U.S. detainees published so far, also tracked former suspects held at the Abu Ghraib prison in Iraq, with similar findings.

For the study, Physicians for Human Rights had doctors and mental health professionals examine 11 former prisoners of Abu Ghraib and Guantanamo Bay.

The U.S-based human rights organization says it found evidence of U.S. torture and war crimes, and it accuses U.S. military health professionals of allowing the abuse of detainees, denying detainees medical care and providing confidential medical information to interrogators that was then exploited.

More... (http://www.cbc.ca/world/story/2008/06/18/guantanamo-report.html)

Full report from Physicians for Human Rights available here (http://brokenlives.info/).

Tom Odom
06-18-2008, 02:59 PM
McClatchy news service run down on the evolution of the interrogation policies. Draw your own conclusions.

Tom


Easing of laws that led to detainee abuse hatched in secret (http://www.mcclatchydc.com/detainees/story/38886.html)

WASHINGTON — The framework under which detainees were imprisoned for years without charges at Guantanamo and in many cases abused in Afghanistan wasn't the product of American military policy or the fault of a few rogue soldiers.

It was largely the work of five White House, Pentagon and Justice Department lawyers who, following the orders of President Bush and Vice President Dick Cheney, reinterpreted or tossed out the U.S. and international laws that govern the treatment of prisoners in wartime, according to former U.S. defense and Bush administration officials.

The Supreme Court now has struck down many of their legal interpretations. It ruled last Thursday that preventing detainees from challenging their detention in federal courts was unconstitutional.



Documents confirm U.S. hid detainees from Red Cross (http://www.mcclatchydc.com/251/story/41394.html)

WASHINGTON — The U.S. military hid the locations of suspected terrorist detainees and concealed harsh treatment to avoid the scrutiny of the International Committee of the Red Cross, according to documents that a Senate committee released Tuesday.

"We may need to curb the harsher operations while ICRC is around. It is better not to expose them to any controversial techniques," Lt. Col. Diane Beaver, a military lawyer who's since retired, said during an October 2002 meeting at the Guantanamo Bay prison to discuss employing interrogation techniques that some have equated with torture. Her comments were recorded in minutes of the meeting that were made public Tuesday. At that same meeting, Beaver also appeared to confirm that U.S. officials at another detention facility — Bagram Air Base in Afghanistan — were using sleep deprivation to "break" detainees well before then-Defense Secretary Donald H. Rumsfeld approved that technique. "True, but officially it is not happening," she is quoted as having said


If the detainee dies you're doing it wrong' (http://www.mcclatchydc.com/world/story/41388.html)
Following are excerpts from some of the documents released today by the Senate Armed Services Committee:

"The CIA is not held to the same rules as the military. In the past when the ICRC (International Committee of the Red Cross) has made a big deal about certain detainees, the DOD has 'moved' them away from the attention of the ICRC. Upon questioning from the ICRC about their whereabouts, the DOD's response has repeatedly been that the detainee merited no status under the Geneva Convention. The CIA has employed aggressive techniques on less than a handful of suspects since 9/11.


The origins of aggressive interrogation techniques (http://media.mcclatchydc.com/smedia/2008/06/17/11/Levin-Gitmo.source.prod_affiliate.91.pdf)(view or download PDF)

jmm99
06-18-2008, 08:31 PM
re: Tom Odom's 1st link above

http://www.mcclatchydc.com/detainees/story/38886.html

The five White House, Pentagon and Justice Department lawyers named in the McClatchy article are David Addington, Alberto Gonzales, William J. Haynes, John Yoo and Timothy E. Flanigan.

The top two, David Addington, Alberto Gonzales, attended but did not finish at service acadamies. That struck me as a bit odd, especially Addington's reason, if Napolitano can be believed. William J. Haynes was an army CPT (1984-1989). No military service indicated for John Yoo and Timothy E. Flanigan; although Flanigan was born at Fort Belvoir.

Here are some links to them.

-------------------------------------------
David Addington
http://en.wikipedia.org/wiki/David_Addington

http://www.newyorker.com/archive/2006/07/03/060703fa_fact1?currentPage=4


After high school, Addington pursued an ambition that he had had for years: to join the military. Rather than attending West Point, as his father had, he enrolled in the U.S. Naval Academy, in Annapolis. But he dropped out before the end of his freshman year. He went home and, according to Napolitano, worked in a Long John Silver’s restaurant. “The academy wasn’t academically challenging enough for him,” Napolitano said.

------------------------------------------
Alberto Gonzales
http://en.wikipedia.org/wiki/Alberto_Gonzales


... Gonzales enlisted in the United States Air Force in 1973, for a four year term of enlistment, serving two years at Fort Yukon, Alaska before released from active duty to be a cadet at the United States Air Force Academy. Prior to beginning his third year at the academy, which would have caused him to incur a further service obligation, he left the Academy and was allowed out of his enlistment contract ...

----------------------------------------
William J. Haynes II
http://en.wikipedia.org/wiki/William_J._Haynes,_II
http://www.usdoj.gov/olp/haynesresume.htm

http://www.dod.mil/dodgc/gc/gcbio.html


Born in Texas, Mr. Haynes earned his Juris Doctor degree from Harvard Law School, and his Bachelor of Arts degree from Davidson College, where he was elected to membership in Phi Beta Kappa and Omicron Delta Kappa. After law school, Mr. Haynes clerked for U.S. District Judge James B. McMillan in Charlotte, North Carolina. He also served four years on active duty as a Captain in the U.S. Army [1984-1989, from resume].

--------------------------------------------
John Yoo
http://en.wikipedia.org/wiki/John_Yoo

http://www.nytimes.com/2005/12/23/politics/23yoo.html?pagewanted=2&ei=5090&en=a097fae4ecca0e64&ex=1292994000&partner=rssuserland&emc=rss


From the chambers of Judge Silberman, Mr. Yoo moved on to a clerkship with Justice Clarence Thomas on the Supreme Court, stopping briefly at Berkeley. Justice Thomas helped place him with Senator Orrin G. Hatch, Republican of Utah, as general counsel on the Senate Judiciary Committee.

Along the way, Mr. Yoo passed up a chance to work in the Washington office of the law firm Jones Day, where he caught the eye of a senior partner, Timothy E. Flanigan. After five years that Mr. Yoo spent at Berkeley, writing on legal aspects of foreign affairs, war powers and presidential authority, the two men met up again when Mr. Yoo joined the Bush campaign's legal team, where Mr. Flanigan was a key lieutenant.

Mr. Flanigan became the deputy White House counsel under Alberto R. Gonzales. Mr. Yoo ended up as a deputy in the Justice Department's Office of Legal Counsel, or the O.L.C., a small unit of lawyers that advises the executive branch on constitutional questions and on the legality of complex or disputed policy issues.

--------------------------------------------
Timothy E. Flanigan
http://en.wikipedia.org/wiki/Timothy_Flanigan


Timothy Elliott Flanigan (b. May 16, 1953 in Fort Belvoir, Virginia) is an American lawyer and politician.

CloseDanger
06-18-2008, 09:17 PM
"If, as the Bush administration has held, they are not "legal combatants", then what are they? The rhetorical answer was to call them "criminals", but even criminals have rights under international laws to which the US is a signatory."

They are neither. They have no code. They are signatory to nothing, and hold no value for life. They do not work for a country OR GOD.

They are noncomformists to civilization as a whole. No one can explain to me why their rights should be covered under the Constitution at all, much less given more rights than our Soldiers have.

There is only the argument.
The supreme court debunking the US Congress in a legal decision raises my awareness to the deep degradation of our legal system. I AM disappointed to say the least.

Our legal system is for our citizens who have rights. Not phlem flam from some throwback century. The supreme court followed the sheep over a cliff on this one.

jmm99
06-19-2008, 01:49 AM
-------------------------------------------
A bit more on Timothy E. Flanigan

http://www.sourcewatch.org/index.php?title=Timothy_E._Flanigan


Prior to joining the Administration [in 2005], Mr. Flanigan was a partner in the law firm of White & Case LLP. ....

Flanigan served as senior law clerk to the late Chief Justice Warren E. Burger from 1985-1986. ... He served with the law firm of Milbank, Tweed, Hadley & McCloy in Washington, DC, 1988 - 90; and the law firm of Shearman & Sterling, 1986-88. ....

He also was a partner at Jones Day when he ran into John Yoo (see above).

Once, it would have been very unusual for someone to be an associate-partner at 4 major law firms. But, that was 40 years ago when I retired from that arena. Looks more like major league baseball today (if Flanigan is anywhere near typical ?).

--------------------------------------------
Caveat: Many of the links below present the Lederman-Balkin viewpoint. So, no endorsement from me - I reserve the right to agree, disagree or simply be confused.

Here is a very large collection of on-topic links

http://balkin.blogspot.com/2005/09/anti-torture-memos-balkinization-posts.html


The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, Executive Authority, DOJ and OLC

Marty Lederman

For ease of reference, we've grouped together [and updated] our posts on the complex of issues raised by torture, interrogation, detention, war powers, Executive authority, the Department of Justice, and the Office of Legal Counsel.

Also, another bunch here

http://balkin.blogspot.com/2006/12/anti-torture-memos.html


The Anti-Torture Memos

JB

The Anti-Torture Memos
Arranged by topic

Finally, Lederman's comments today:

http://balkin.blogspot.com/


Wednesday, June 18, 2008
By Contrast, Here's an Administration Attorney Who Takes His Public Service Seriously -- Important Revelations from Dan Levin

marct
06-19-2008, 03:09 PM
"If, as the Bush administration has held, they are not "legal combatants", then what are they? The rhetorical answer was to call them "criminals", but even criminals have rights under international laws to which the US is a signatory."

They are neither. They have no code. They are signatory to nothing, and hold no value for life. They do not work for a country OR GOD.

Whether or not they are signatories is not germain to the argument - the US is a signatory.


Our legal system is for our citizens who have rights. Not phlem flam from some throwback century.

Your legal system, including all of your rules of evidence, "rights", etc., is for whomever your government agrees to cover which may, or may not, include your citizens and those of other nations. Rule of law has nothing whatsoever to do with whether or not the people who are detained have ever signed a convention (individuals don't) or are citizens with rights (as opposed to either citizens without rights or non-citizens), but it has everything to do with the US government keeping its pledged word to the international community.

jmm99
06-19-2008, 06:59 PM
Hi Marc,

One small point on the following from your post:


... it has everything to do with the US government keeping its pledged word to the international community.

That "pledged word" is always subject to the US Constitution, as reflected in Reid v. Covert and other cases. Sometimes, that is stated in an express reservation to the treaty; but, it is always implicit if not expressed:

http://en.wikipedia.org/wiki/Reid_v._Covert


Reid v. Covert, 354 U.S. 1 (1957), is a landmark case in which the United States Supreme Court ruled that the Constitution supersedes international treaties ratified by the United States Senate. According to the decision, "this Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty," although the case itself was with regard to an executive agreement and the [sic, "a"] treaty has never been ruled unconstitutional.

The case involved Mrs. Covert, who had been convicted by a military tribunal of murdering her husband. At the time of Mrs. Covert's alleged offense, an executive agreement was in effect between the United States and United Kingdom which permitted United States' military courts to exercise exclusive jurisdiction over offenses committed in Great Britain by American servicemen or their dependents. The Court found that "no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution." The Court's core holding of the case is that civilian wives of soldiers may not be tried under military jurisdiction, because the Fifth Amendment's grant for military jurisdiction, i.e. "except in cases arising in the land and naval forces" cannot sweep in the jury-trial requirement reflected in the Fifth and Sixth Amendments.

Links to opinions in Reid v. Covert are at:

http://en.wikisource.org/wiki/Reid_v._Covert

Executive agreements (whether congressional-presidential or presidential only) and treaties are subject to the same limitations - and can validly cover the same subject matter. I wrote on that topic 40 years ago (my only academic publication :)).


Constitutional Law: Executive Agreements: International Law: Executive Authority concerning the Future Political Status of the Trust Territory of the Pacific Islands. Michigan Law Review, Vol. 66, No. 6 (Apr., 1968), pp. 1277-1292 (article consists of 16 pages) Published by: The Michigan Law Review Association.

GC's (especially common Art. 3) are more of a quagmire. Still struggling with those in light of the recent cases, without reaching any firm conclusions.

Tom Odom
06-25-2008, 12:56 PM
Joe Galloway's latest on MG (ret) Taguba--also on Ebird today


Commentary: Gen. Taguba knew scandal went to the top (http://www.mcclatchydc.com/galloway/story/41772.html)

Tony Taguba knew something about prisoners in wartime long before the Pentagon ordered him to investigate the torture and shameful mistreatment of Iraqi detainees revealed by those soldier photographs taken inside Abu Ghraib prison.

You see, his father, Sgt. Tomas Taguba, was a soldier in the famed Philippine Scouts and was, briefly, a prisoner of the Japanese after Bataan fell in the opening days of our war in the Pacific. Sgt. Taguba escaped during the Death March and spent the next three years spying on the Japanese and relaying the information to U.S. forces.


In the preface to a damning report on the treatment of Guantanamo detainees by a group called Physicians for Human Rights — which had examined and interviewed 11 former Guantanamo detainees freed without charges — Taguba declared that there was no longer any doubt whatsoever that President George W. Bush and others in the White House had committed war crimes. Related article (http://www.mcclatchydc.com/homepage/story/41514.html)

jmm99
06-25-2008, 05:56 PM
The first of the DTA (Detainee Treatment Act of 2005) cases was decided Friday, with notice issued Monday:

http://www.scotusblog.com/wp/wp-content/uploads/2008/06/parhat-order-6-20-08.pdf


On Friday, June 20, 2008, the court issued an opinion to the parties in the above-captioned case. Pursuant to the Detainee Treatment Act of 2005, the court held invalid a decision of a Combatant Status Review Tribunal that petitioner Huzaifa Parhat is an enemy combatant. The court directed the government to release or to transfer Parhat, or to expeditiously hold a new Tribunal consistent with the court's opinion. The court also stated that its disposition was without prejudice to Parhat's right to seek release immediately through a writ of habeas corpus in the district court, pursuant to the Supreme Court's decision in Boumediene v. Bush, No. 06-1195, slip op. at 65-66 (U.S. June 12, 2008). Because the opinion contains classified information and information that the government had initially submitted for treatment under seal, a redacted version for public release is in preparation.

Note that the government was given options: (1) to release Parhat; (2) to transfer Parhat (presumably to another status or to another jurisdiction); or (3) to expeditiously hold a new Tribunal consistent with the court's opinion.

Parhat was given the option to apply for habeas; but, as the pair in Omar-Munaf found out, habeas jurisdiction granted does not necessarily mean release. Those two should be remanded to Iraqi custody in accord with Justice Robert's decision.

---------------------------
My 2 cents worth on US "war crimes" and "war criminals" - Take a deep breath and hold it.

jmm99
07-01-2008, 02:15 AM
The DC Circuit issued its unanimous opinion in Parhat v. Gates, redacting quotation of classified evidence, at:

http://www.scotusblog.com/wp/wp-content/uploads/2008/06/parhat-redacted-opin-6-20-08.pdf

Some key points in the holding:


(slip p. 30)

In this opinion, we neither prescribe nor proscribe possible ways in which the government may demonstrate the reliability of its evidence. We merely reject the government’s contention that it can prevail by submitting documents that read as if they were indictments or civil complaints, and that simply assert as facts the elements required to prove that a detainee falls within the definition of enemy combatant.

and,


(slip p. 33)

Accordingly, we direct the government to release Parhat, to transfer him, [19] or to expeditiously convene a new CSRT to consider evidence submitted in a manner consistent with this opinion. If the government chooses the latter course, it must -- to obviate the need for another remand -- present to that Tribunal the best record of Parhat’s status as an enemy combatant that it is prepared to make.

[19] The government is under district court order to give 30 days’ notice of intent to remove Parhat from Guantanamo. See Kiyemba v. Bush, No. 05-1509, Mem. Order at 2-3 (D.D.C. Sept. 13, 2005).

and,


(slip p. 38)

Congress has directed this court “to determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant.” DTA § 1005(e)(2)(A). In so doing, we are to “determine,” inter alia, whether the CSRT’s decision “was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals[,] including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence.” Id. § 1005(e)(2)(C)(i). A CSRT’s decision regarding enemy combatant status was not consistent with those standards and procedures unless the Tribunal had -- and took -- the opportunity to assess the reliability of the evidence that the government presented to it. Nor can this court conclude that such a decision was consistent with those standards and procedures unless we, too, are able to assess the reliability of the government’s evidence. Because the evidence that the government submitted to Parhat’s CSRT did not permit the Tribunal to make the necessary assessment, and because the record on review does not permit the court to do so, we cannot find that the government’s designation of Parhat as an enemy combatant was consistent with the specified standards and procedures and is supported by a preponderance of the evidence.

-------------------------------------------------
Commentary on Parhat by Marty Lederman at:

http://balkin.blogspot.com/2008/06/can-president-indefinitely-detain.html

and by Lyle Denniston at

http://www.scotusblog.com/wp/circuit-court-no-detention-based-on-bare-assertions/

jmm99
07-01-2008, 02:46 AM
The 2nd Circuit (in a 2-1 opinion) ruled today that Arar may not sue U.S. government officers for money damages based on allegations that he was captured and sent to Syria where he was tortured.

http://www.scotusblog.com/wp/wp-content/uploads/2008/06/arar-ruling-by-2d-ca-6-30-08.pdf

This decision was not based on a trial with evidence presented. For purposes of this decision only, Arar's allegations in his complaint (dismissed by the district court with prejudice) were assumed by the Circuit Court to be factually true.

The majority summarized its holding as follows:


(slip pp. 6-8)

We must therefore determine (1) whether the district court had personal jurisdiction over the individual defendants; (2) whether Arar’s allegation that U.S. officials conspired with Syrian authorities to torture him states a claim against the U.S. officials under the TVPA; (3) whether to create a judicial damages remedy, pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), for Arar’s claims that U.S. officials (a) removed him to Syria with the knowledge or intention that he would be detained and tortured there and (b) mistreated him while he was detained in the United States; and finally, (4) whether Arar may seek a declaratory judgment that defendants’ actions violated his constitutional rights.

For the reasons that follow, we conclude that under the precedents of the Supreme Court and our Court: (1) Arar has made a prima facie showing sufficient to establish personal jurisdiction over Thompson, Ashcroft, and Mueller at this early stage of the litigation; (2) Count one of Arar’s complaint must be dismissed because Arar’s allegations regarding his removal to Syria do not state a claim against defendants under the TVPA; (3) Counts two and three of Arar’s complaint, which envisage the judicial creation of a cause of action pursuant to the doctrine of Bivens, must also be dismissed because (a) the remedial scheme established by Congress is sufficient to cause us to refrain from creating a free standing damages remedy for Arar’s removal-related claims; and (b) assuming for the sake of the argument that the existence of a remedial scheme established by Congress was insufficient to convince us, “special factors” of the kind identified by the Supreme Court in its Bivens jurisprudence counsel against the judicial creation of a damages remedy for claims arising from Arar’s removal to Syria; (4) Count four of Arar’s complaint must be dismissed because Arar’s allegations about the mistreatment he suffered while in the United States do not state a claim against defendants under the Due Process Clause of the Fifth Amendment; and (5) Arar has not adequately established federal subject matter jurisdiction over his request for a judgment declaring that defendants acted illegally by removing him to Syria so that Syrian authorities could interrogate him under torture.

In the circumstances presented, we need not consider the issues raised by the assertion of the state-secrets privilege by the United States—particularly, whether the exclusion of information pursuant to the privilege might result in the dismissal of certain of Arar’s claims.

We do not doubt that if Congress were so inclined, it could exercise its powers under the Constitution to authorize a cause of action for money damages to redress the type of claims asserted by Arar in this action. The fact remains, however, that Congress has not done so. Instead, it has chosen to establish a remedial process that does not include a cause of action for damages against U.S. officials for injuries arising from the exercise of their discretionary authority to remove inadmissible aliens. We are not free to be indifferent to the determinations of Congress, or to ignore the Supreme Court’s instructions to exercise great caution when considering whether to devise new and heretofore unknown, causes of action.

-----------------------------------------------
Brief commentary by Lyle Denniston at:

http://www.scotusblog.com/wp/circuit-court-no-damages-for-rendition/

This case will be of Canadian interest.

jmm99
07-05-2008, 04:11 AM
is back in the news as his lawyers seek to stop his military commission trial, set for 21 Jul 2008.

Article by Lyle Denniston here:

http://www.scotusblog.com/wp/new-challenge-to-war-crimes-trials/#more-7638


New challenge to war crimes trials
Thursday, July 3rd, 2008
Lyle Denniston
....
Lawyers for Salim Ahmed Hamdan — the Yemeni national detained at Guantanamo Bay whose case led to the scuttling of President Bush’s first attempt to set up military trials for terrorism suspects — moved on Thursday to stop the replacement system enacted by Congress. In legal filings in U.S. District Court, Hamdan’s counsel sought a court order blocking the scheduled military commission trial of Hamdan, now due to begin on July 21.
.....
UPDATE 4:23 p.m. District Judge James Robertson, moving this new case along swiftly, has told the Justice Department to file its opposition on Monday, July 14, and detainee’s counsel to file their reply on Wednesday, July 16. The judge set oral argument on the motion for Thursday, July 17.

More than 250 cases are expected in the DC district::

http://www.scotusblog.com/wp/detainee-cases-back-in-district-court/


Federal District judges in Washington, D.C., who will handle scores of pending and likely future challenges by Guantanamo Bay detainees to their confinement, decided on Monday to shift them temporarily to one judge to work on ways to process the cases. Attorneys for detainees began receiving notices Tuesday that the judges, in a closed-door session earlier in the day, had agreed that Senior District Judge Thomas F. Hogan would handle “coordination and management” issues. The underlying cases will remain with the individual judges for future action on the merits.

Of course, there was an exception - so, 18 cases (including Boumediene) are following a separate track:

http://www.scotusblog.com/wp/separate-track-for-some-detainees/


A federal judge in Washington, refusing to give up even temporarily the handling of 18 cases by Guantanamo Bay detainees seeking to challenge their captivity, moved forward with those on Wednesday, calling in lawyers for an update on the cases’ status on July 10. Among the 18 cases is the lead case that led to the Supreme Court’s decision allowing habeas pleas by the captives – Boumediene v. Bush (District Court docket 04-1166, Supreme Court docket 06-1195).

For more in depth coverage of the major detainees, see the DoD's Military Commissions page at:

http://www.defenselink.mil/news/commissions.html


E.g.,

Military Commissions Act
Military Commissions Manual
Military Commissions Regulation
Military Commissions Trial Judiciary Rules of Court
United States Court of Military Commission Review
...
Commission Cases

Sept. 11 Co-Conspirators *New Items*
Khalid Sheikh Mohammed
Walid Muhammad Salih Mubarek Bin 'Attash
Ramzi Binalshibh
Ali Abdul Aziz Ali
Mustafa Ahmed Adam al Hawsawi
[etc.]

Since this site includes the charge sheets and MC orders (including the Dec 2007 orders for Hamdan), one can draw one's own conclusions about how "due" the process has been.

At least, in Hamdan's case (after reading the MC judge's decisions in Dec 2007), here and here:

http://www.defenselink.mil/news/commissionsHamdan.html

http://www.defenselink.mil/news/commissionspress.html


12/19/2007 - Ruling in Motion to Dismiss for Lack of Jurisdiction - Salim Ahmed Hamdan
12/17/2007 - Ruling on Defense Motion for Article 5 Status Determination - Salim Ahmed Hamdan

I fail to see the problem. They were well considered decisions.

jmm99
07-17-2008, 06:14 PM
The military commission trial of Hamdan will move forward next week, unless enjoined by a higher court.


Analysis by Lyle Denniston

U.S. District Judge James Robertson refused on Thursday to delay the trial of a Yemeni national on war crimes charges - a trial scheduled to begin next Monday.

The judge issued an oral ruling after a morning hearing and said he would issue a written opinion probably by tomorrow morning so that either side could challenge it in the D.C. Circuit Court if they wished.

The judge said he based his ruling - on a motion filed by Salim Ahmed Hamdan, the detainee best known as the alleged driver of Osama bin Laden - on the fact that Congress and the President had decided that any review of the fairness of a military commission trial should occur after “final judgment” and not before. He also said that a recent ruling by the D.C. Circuit in another detainee’s case [Parhat v Gates, discussed in above posts] made it clear that all of the challenges that are raised against military commission trials can be addressed once the trial is over. He said lawyers for Hamdan had raised “novel and complex” constitutional issues but he did not think he needed to address them at this time.

http://www.scotusblog.com/wp/judge-refuses-to-delay-war-crimes-trial/


-------------------------------------------------
The somewhat different al-Marri case (he was a foreign national arrested in the US) also was resolved at the Court of Appeals level, in a very divided set of 5-4 opinions, consisting of some 7 separate opinions in 216 pages. The net result was generic approval of the MCA system, with the addition of possible habeas corpus relief upon remand to District Court.

http://www.scotusblog.com/wp/split-decision-on-al-marri/


Analysis by Lyle Denniston

A federal appeals court on Tuesday upheld President Bush’s power to order the detention of a foreign student living in the U.S., based on claims he had terrorist links, but also ruled that the detainee must be given a new chance to challenge in court his designation as an “enemy combatant” — the basis for holding him.
.....
Because Judge Traxler’s vote was necessary to make a majority on each part of the ruling, and because he did not sign onto any opinion written by other judges on either part, his 35 pages of rationale generally will be considered the controlling justification for the entire decision. The four judges who voted against presidential authority to order the detention said they would not have ruled on the detainee’s right to challenge his detention, but they nevertheless voted to support Traxler on that point “to give practical effect” to an order to govern further developments in District Court.
......
The Traxler opinion concluded that Al-Marri is entitled to “further evidentiary proceedings on the issue” of whether he “is, in fact, an enemy combatant subject to military detention.”

The general rule, the judge said, is that “Al-Marri would be entitled to the normal due process protections available to all within this country,” but that general rule can be offset if the government first shows that it is outweighed by national security and that it would be too burdensome for the government to have to produce stronger evidence to justify a detention, in response to a detainee’s demands for more information from the government.

The al-Marri opinions are here:

http://www.scotusblog.com/wp/wp-content/uploads/2008/07/almarrienbanc.pdf

The actual holding of the Court (what all of the judges could agree on about their disagreements !) was this:


(slip pp.4-5)

PER CURIAM:

Ali Saleh Kahlah al-Marri filed a petition for a writ of habeas corpus challenging his military detention as an enemy combatant. After the district court denied all relief, al-Marri noted this appeal. A divided panel of this court reversed the judgment of the district court and ordered that al-Marri’s military detention cease. See Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007). Subsequently, this court vacated that judgment and considered the case en banc.

The parties present two principal issues for our consideration: (1) assuming the Government’s allegations about al-Marri are true, whether Congress has empowered the President to detain al-Marri as an enemy combatant; and (2) assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government’s allegations against him are true, whether al-Marri has been afforded sufficient process to challenge his designation as an enemy combatant.

Having considered the briefs and arguments of the parties, the en banc court now holds: (1) by a 5 to 4 vote (Chief Judge Williams and Judges Wilkinson, Niemeyer, Traxler, and Duncan voting in the affirmative; Judges Michael, Motz, King, and Gregory voting in the negative), that, if the Government’s allegations about al-Marri are true, Congress has empowered the President to detain him as an enemy combatant; and (2) by a 5 to 4 vote (Judges Michael, Motz, Traxler, King, and Gregory voting in the affirmative; Chief Judge Williams and Judges Wilkinson, Niemeyer, and Duncan voting in the negative), that, assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government’s allegations against him are true, al-Marri has not been afforded sufficient process to challenge his designation as an enemy combatant.

Accordingly, the judgment of the district court is reversed and remanded for further proceedings consistent with the opinions that follow.


----------------------------------------------
The lesson that is beginning to emerge from these cases is that the MCA system itself (that is, trial by military commissions) is holding up fairly well to challenges; but that the courts are very uncomfortable with the CSRT (combatant status review tribunal) process - and with unilateral executive determinations of unlawful enemy combatant status.

In fact, the military judge (Keith J. Allred) in the Hamdan case, found the CSRT process to be deficient for a number of reasons (written opinion issued 17 Dec 2007). He then proceeded to determine Hamdan's status at a de novo hearing (5 & 6 Dec 2007), where both sides presented their proofs on the question of unlawful enemy combatant status vs. PW/POW status. He then entered findings of fact and concluded that Hamdan was an unlawful enemy combatant (written opinion issued 19 Dec 2007).

See, the following for links to Judge Allred's opinions, and new filings in the Hamdan MCA trial:

http://www.defenselink.mil/news/commissionspress.html

http://www.defenselink.mil/news/commissionsHamdan.html

jmm99
07-18-2008, 07:36 PM
for now; and the MC trial begins Monday.


Analysis by Lyle Denniston

UPDATE 2:15 p.m. The judge’s refusal to delay the Hamdan trial starting Monday will not be challenged in a higher court. Georgetown law professor Neal Katyal, one of the defense lawyers, said: “We have decided not to appeal Judge Robertson’s decision.” If the detainee ultimately is convicted, he will have the option then to appeal.
....
While the substance of Judge Robertson’s “memorandum order” closely tracked his oral announcement a day before, at several points he impliedly questioned some aspects of the trial process set up by Congress under the Military Commissions Act of 2006.
.....
The judge, at the same time, seemed impressed by what he called “significant improvements” in the war crimes trial process under the 2006 law, compared to the process that the judge himself had struck down in 2004 in an earlier case involving Hamdan; that earlier process had been set up solely under Presidential order. (The Supreme Court in 2006 nullified that earlier system, mostly agreeing with Judge Robertson.)

The judge indicated again, as he had Thursday, that the fact that the two other branches of government had combined to create the new system was a key factor in his ruling. “Where both Congress and the President have expressly decided when Article III review is to occur, the courts should be wary of disturbing their judgment.”

http://www.scotusblog.com/wp/hamdan-opinion-now-available/

Judge Robertson's written opinion, filed today, is here:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2004cv1519-108

jmm99
07-22-2008, 06:32 PM
for those that are interested in day to day, SCOTUSblog will be linking to the news stories on the MC trial, as well as linking to any written rulings that are issued. For example, today's coverage:


Hamdan Military Commission Coverage
....
Due to reader interest in Salim Ahmed Hamdan, the military detainee who has admitted to formerly serving as a driver for Osama bin Laden, this post will provide links to coverage from designated major media outlets of his ongoing military commission trial from Guantanamo Bay, Cuba. Going forward, readers can access this post by clicking the SCOTUSblog logo at the top of the right sidebar.

July 22

Miami Herald: “Trial arguments describe world of al Qaeda,” by Carol Rosenberg (link)
New York Times: “Military Trial Begins for Guantanamo Detainee,” by William Glaberson and Eric Lichtblau (link)
Washington Post: “Prosecutors Begin Arguments in Hamdan Case,” by Jerry Markon (link)

http://www.scotusblog.com/wp/

jmm99
07-26-2008, 02:56 AM
to sort out - the appeals and hearings in a number of pending DC cases.


US files first appeal in new detainee cases
Friday, July 25th, 2008 3:05 pm Lyle Denniston
....
The Justice Department on Friday notified the federal judge in charge of coordinating scores of new Guantanamo Bay detainees’ cases that it is appealing his order requiring the government to give advance notice before it moves any prisoner out of the military prison on the island of Cuba. This marks the first appeal in what could be a number of them as deep controversies continue to split government attorneys and lawyers for the captives.
...
In a notice of appeal Friday, the Department said it was appealing Hogan’s order “in its entirety” in 117 pending habeas cases filed by detainees. The notice, as usual, contained no explanation of the basic and scope of the appeal, other than contesting all of the Hogan order.

First detainee plea to come to U.S.
Thursday, July 24th, 2008 6:29 pm Lyle Denniston
....
In the first effort to win release into the U.S. — to the Washington, D.C., area — of a Guantanamo Bay detainee, lawyers for a member of a Chinese Muslim minority have asked a federal judge to order the Pentagon to free him immediately. The individual is Huzaifa Parhat, whose case is the furthest along of any of more than 200 Guantanamo prisoners who are challenging their detention.

http://www.scotusblog.com/wp/

----------------------------------------
The D.C. District Court now provides a webpage for the Gitmo cases.


WASHINGTON, DC., July 25, 2008 - The United States District Court for the District of Columbia today unveiled a web page for the Guantanamo detainee habeas cases before the Court. The webpage includes links to recent opinions and orders, press releases, notices and general information about the Court. A link to the web page can be found at the top of the Court’s home page www.dcd.uscourts.gov

which leads to

http://www.dcd.uscourts.gov/public-docs/gitmo

Looks like the whole ball of wax (hundreds of ops & orders)- maybe, I should get back into trial law. Not likely, John Michael, not likely.

selil
07-26-2008, 03:39 AM
Judges writing orders restrict the movement of prisoners is not new. In fact I've seen dozens of these up to and including housing assignment (like no solitary confinement). I know that it may seem small potatoes but that kind of custodial interference is not normal but does occur. I wonder what the appeal will actually look like.

jmm99
07-26-2008, 04:20 AM
Guess we'll just have to wait. I'll post a link if something shows.

During our Civil War, a common trick (to defeat or delay habeas hearings) was to move the prisoner around from jail to jail. Refer to a history on the Copperhead cases.

I'd suspect Judge Hogan's motives were more practical - insuring that he and legal counsel know where the detainees are.

selil
07-26-2008, 04:49 AM
I can't find a link but I thought after the New Mexico riots judges were in charge of the department of corrections and reviewing housing assignments and such (especially the privatized) for the facilities. Somewhere I have a few books on incarceration reform and corrections history (legal).

jmm99
07-26-2008, 07:31 PM
links to briefs before the District Court (nothing on US's appeal brief, which may not be filed for awhile).


Sharp dispute over shape of detainee cases
Saturday, July 26th, 2008 8:49 am Lyle Denniston
....
In the first formal moves to shape the federal courts’ review of the government’s power to keep detainees in captivity at Guantanamo Bay, the two sides in the courthouse battle proposed sharply differing approaches on Friday night. With agreement on few critical points, lawyers for the government and for detainees set up a running dispute that potentially could lead quickly to multiple appeals, perhaps reaching the Supreme Court.

As expected, the detainees’ attorneys suggested a sweeping and penetrating, if somewhat flexible, probe of the government’s reasons for original detention decisions and for continuing to confine captives, and Justice Department attorneys proposed a more streamlined process that would significantly narrow the judges’ review.

The briefs are each side’s attempt to carry out their view of what the Supreme Court had in mind in its June 12 decision (Boumediene v. Bush, 06-1195) declaring that the detainees have a constitutional right to challenge their captivity. The detainees’ arguments stress the historic importance of a detailed examination of Executive Branch decisions to hold individuals without charges, while the government’s arguments stress the need to keep the process confined in order not to intrude on the Executive’s “wartime” powers.

http://www.scotusblog.com/wp/sharp-dispute-over-shape-of-detainee-cases/#more-7727

Detainees’ brief here:

http://www.scotusblog.com/wp/wp-content/uploads/2008/07/detainee-proced-bf-7-25-08.pdf

Government brief here

http://www.scotusblog.com/wp/wp-content/uploads/2008/07/us-procedure-bf-7-25-08.pdf

Government’s proposed “case management” order here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/07/us-prop-case-order-7-25-08.pdf

Each side will file a response to the other’s document by 1 Aug.

jmm99
07-30-2008, 02:21 AM
(oops) one of the accused man-eating tigers,

rears its head.


New attempt to stop war crimes trial
Tuesday, July 29th, 2008 6:56 pm Lyle Denniston
......
One of the Guantanamo Bay detainees facing war crimes charges claiming direct roles in the Sept. 11/ 2001, terrorist attacks - Ramzi bin al-Shibh - has asked a federal judge to block his trial before a military commission. Public defender lawyers for bin al-Shibh, in papers made public on Monday, argued that his trial should be blocked so that his lawyers can go ahead with their challenge claiming that the military commission system is illegal.
.....
The detainee is one of the four prisoners at Guantanamo - called “high-value detainees” by the government - who have been charged with crimes growing out of the 9/11 attacks. Military prosecutors have said that bin al-Shibh was “a coordinator of the 9/11 attacks.” He was captured in September 2002 at a site that prosecutors said was “an al-Qaeda safe house.” A date for his commission trial has not been set, but his motion said it was “imminent.”
.....
bin al-Shibh’s attempt to stop his war crimes trial is the second such attempt by a Guantanamo detainee. Salim Ahmed Hamdan - the first to go on trial before a commission at Guantanamo (he is not a “high-value” detainee) - failed to persuade District Judge James Robertson to delay his trial.

The Justice Department, having succeeded in keeping the Hamdan trial on track, repeated in its response to bin al-Shibh’s plea for an injunction with many of the same arguments it used against Hamdan’s request.

http://www.scotusblog.com/wp/new-attempt-to-stop-war-crimes-trial/

Not one of my "be kind to man-eating tigers" days.

jmm99
08-02-2008, 06:22 PM
on the process each side wants. As expected, they disagree; and the three judges hearing the cases may diverge in their opinions. Full discussion here:


Analysis: Core of the habeas dispute
Saturday, August 2nd, 2008 7:18 am Lyle Denniston
......
Analysis

The second round of legal papers arguing how federal judges should probe Pentagon decisions to hold detainees at Guantanamo Bay strips the underlying dispute down to its core: what legal source governs that process? To the detainees, the federal habeas laws written by Congress control; to the government, only the Constitution remains to control them.

How federal judges resolve that issue — and three different judges are now taking on that initial task, and might well disagree over it — seems sure to shape the structure of the habeas review that the Supreme Court ordered for detainees in its ruling in June in Boumediene v. Bush.

The detainees’ view, if accepted, very likely would lead to a wider ranging inquiry, the government’s to a more narrowly confined review. Indeed, those are precisely the conflicting objectives that the two sides were pursuing as they filed, late Friday night, their responses to each others’ proposals on the “procedural framework” for the habeas cases.

http://www.scotusblog.com/wp/analysis-core-of-the-habeas-dispute/#more-7762

The detainees’ new brief is here

http://www.scotusblog.com/wp/wp-content/uploads/2008/08/detainee-response-procedure-8-1-08.pdf

The government’s is here

http://www.scotusblog.com/wp/wp-content/uploads/2008/08/us-response-procedure-8-1-08.pdf

jmm99
08-04-2008, 08:26 PM
and will decide the case.

While the lead of the Times article has a slant (IMO), the remainder does outline the case fairly well - and the jury panel in general. Since Judge Allred has not filed written opinions since the trial began (not unusual), I cannot attest for the reporter's accuracy.


Jury is out for Hamdan -- and the tribunal process
The first person to be tried in a military tribunal at Guantanamo will remain incarcerated no matter the verdict. Concerns remain about the procedure's fairness.
By Carol J. Williams, Los Angeles Times Staff Writer
August 4, 2008
GUANTANAMO BAY, CUBA -- The war crimes case against Salim Ahmed Hamdan today goes to a jury of his enemies, hand-selected by the Pentagon official who charged him on behalf of a president who has ordered him imprisoned even if acquitted.

http://www.latimes.com/news/nationworld/nation/la-na-hamdan4-2008aug04,0,2040961.story

Note: This may already be old news as you read this.

-------------------------------------------
In the related D.C. habeas cases, both Marty Lederman and Lyle Deniston has posted discussions of the overall issues, with links to a number of their previous posts and to the cases and briefs involved (some already cited in previous posts).


Analysis: Is Procedure or Substance (or Both) at the “Core” of the GTMO Habeas Cases?
Saturday, August 2nd, 2008 1:55 pm Marty Lederman
.....
Lyle’s post below continues his indispensable series on the procedural disputes that the district court judges in D.C. are about to (begin to) resolve in the GTMO habeas cases.

Once those questions are answered, however, there is an even more important question lurking, one on which the two sides appear to be even farther apart: What, exactly, is the scope of the authority Congress has conferred upon the President to use indefinite military detention? In other words, what is the proper definition of “enemy combatant”? That was the second question presented in Boumediene, and it was briefed by Paul Clement and Seth Waxman, but the Court did not reach it.

[text with discussion and links follow this]

http://www.scotusblog.com/wp/analysis-is-proceudre-or-substance-the-core-of-the-gtmo-habeas-cases/

Lyle Deniston analysis, ref'd by Lederman, is linked in my post above.

jmm99
08-06-2008, 07:07 PM
since this is a split (Hamdan not guilty of being part of an AQ conspiracy)


Hamdan convicted in split verdict
Wednesday, August 6th, 2008 11:12 am Lyle Denniston
....
In the first trial by a U.S. military commission in more than 60 years, a jury of six officers on Wednesday reached a split verdict of guilty and acquittal in the case of Salim Ahmed Hamdan, according to news accounts from Guantanamo Bay. The case is almost certainly going to be appealed, first through a military review system then through civilian courts, perhaps ultimately to the Supreme Court.
.......
The New York Times reported Wednesday morning that “the commission acquitted Mr. Hamdan of a conspiracy charge, arguably the more serious of two charges he faced, but convicted him of a separate charge of providing material support for terrorism.” The Times said sentencing would be decided at a separate proceeding beginning later in the day Wednesday. The maximum sentence is life, which Hamdan would serve at a facility on the U.S. Navy base at Guantanamo.

http://www.scotusblog.com/wp/hamdan-convicted-in-split-verdict

Miami Herald: “Bin Laden’s Driver Found Guilty of War Crimes,” by Carol Rosenberg

http://www.miamiherald.com/news/breaking-news/story/631090.html

New York Times: “Guantánamo Detainee Convicted by Military Panel,” by William Glaberson

http://www.nytimes.com/2008/08/06/washington/07gitmo.html?_r=1&hp&oref=slogin

To Be Continued........

jmm99
08-14-2008, 02:39 AM
Not in the case below. One of the chamber of horrors arguments against allowing basic habeas petitions to Gitmo detainees was that allowing them would lead to court orders regulating prison conditions, etc.

Perhaps, some judge will enter that arena, but Judge Urbina declined.


Analysis: What did Boumediene strike down?
Thursday, August 7th, 2008 8:11 pm Lyle Denniston
....
Analysis

The Supreme Court, in moving in June to clarify the legal rights of Guantanamo Bay detainees, made this explicit comment in the main opinion in Boumediene v. Bush (06-1195): “The only law we identify as unconstitutional is MCA Sec. 7, 28 USCA 2241(e)(Supp. 2007).” The MCA is the Military Commissions Act of 2006, and Section 7(e) is the so-called “court-stripping” provision - Congress’s now partially failed effort to scuttle all habeas rights of the detainees.

There are, however, two parts to Section 7(e). As lower court judges move to apply Boumediene, they are discovering what one judge on Thursday described as an “ambiguity” in that ruling.
....
In the end, using his discretion (which he presumably retained, since he did not find a lack of jurisdiction), the judge balanced the claims of the detainees to some relief from their “nearly seven years” of confinement without a trial with the government’s reliance on what he called “the ambiguity” in Boumediene, and the Pentagon’s need to keep control of security at the Guantanamo prison. He refused to order the six prisoners moved out of Camp 6 to Camp 4.

http://www.scotusblog.com/wp/analysis-what-did-boumediene-strike-down/

Judge Urbina's opinion is here:

http://www.scotusblog.com/wp/wp-content/uploads/2008/08/urbina-ruling-uighurs-8-7-08.pdf

jmm99
08-19-2008, 01:40 AM
Mohamed Jawad is charged as an unlawful enemy combatant, with attempted murder and committing serious bodily harm, based on a grenade thrown into military vehicle wounding 2 SF NCOs and their Afghan interpreter.

This is a very simple case factually. The guy either did it, assisted an accomplice to do it, or he didn't (i.e., was an "innocent by-stander"). It has received considerable press for reasons not material to the charges.

Charge Sheet at

http://www.defenselink.mil/news/Jan2008/d20080130jawadcharge.pdf

Defense Brief No.1

http://www.defenselink.mil/news/d20080528Defense%20Motion%20To%20Dismiss%20for%20F ailure%20to%20State%20an%20Offense%20-%20Lack%20of%20Subject%20Matter%20Jurisdiction%20D-007.pdf

Defense Brief No.2

http://www.defenselink.mil/news/d20080528Defense%20Motion%20to%20Dismiss%20Based%2 0on%20Torture%20of%20Detainee.pdf

jmm99
08-20-2008, 01:17 AM
Omar Ahmed Khadr originally was charged with murder, attempted murder, conspiracy with AQ, providing support to AQ & spying - non-capital case on all counts.

As with Jawad, the murder part of the case is not factually complex - the guy did it or he didn't. The other charges are more akin to Hamdan.

Also, as with Jawad and more so, the Khadr case has generated a large press coverage on issues not material to the charges.

Quite a few pleadings & opinions have been filed in this case. Some are not worth looking at because they are heavily redacted (classified) - e.g., a 7MB .pdf file "06/04/2007 - Motion Session (Charges dismissed)" of 305 pages (95+% redacted). Two rulings of interest (to me) are linked below.

Charge Sheet

http://www.defenselink.mil/news/Apr2007/Khadrreferral.pdf

Filings Inventory thru 7 May 2008 (30 pages)

http://www.defenselink.mil/news/d20080508us-khadr.pdf

Ruling No 1 (Bill of Attainder)

http://www.defenselink.mil/news/Feb2008/d20080221attainder.pdf

Ruling No 2 (Child Soldier)

http://www.defenselink.mil/news/d20080430Motion.pdf

------------------------------
I'll post something within the near future on upcoming events in Parhat (## 44 & 45) - the Uighur Muslim whose claim was basically this:


from Lyle Denniston, link in #45
Parhat is a Chinese citizen of Uighur heritage. The Uighurs reside mainly in the far-western Chinese province of Zinjiang, which they call East Turkistan. Parhat claims that he fled China because of oppression and torture there, and went to Afghanistan to fight against China. He claims that he had never engaged in any hostilities against the U.S., and that his only enemy is China.

The DC Circuit held on the facts that he was not an enemy combatant. The problem is what to do with Mr. Parhat, who has been found not guilty. China might like to take him, but that would probably mean a de facto death sentence for Parhat. This case has some aspects of a human rights case, where positions cannot be easily divided into left and right, liberal and conservative.

jmm99
08-31-2008, 06:26 AM
This is a long series of posts, but they are needed to understand the last one - which is news.


Analysis: Escalating the Parhat case
Tuesday, August 19th, 2008 7:25 pm | Lyle Denniston
Analysis

In the annals of the ongoing constitutional battle in America’s courts over the “war-on-terrorism,” Shafiq Rasul, Yaser Esam Hamdi, Salim Ahmed Hamdan and Lakhdar Boumediene already have made history — especially in the Supreme Court. It now appears that Huzaifa Parhat could be the next detainee added to that list.

A member of a long-persecuted Chinese Muslim community, the Uighurs, Parhat is moving rapidly toward a courthouse showdown of major proportions.

He is attempting to become the first Guantanamo Bay detainee to take the witness stand in a civilian courtroom inside the U.S., to make a personal case for freedom, and, more significantly, he is seeking actual release into the U.S. to live, at least temporarily, with a group of Uighurs in the Washington, D.C., area. ...

http://www.scotusblog.com/wp/analysis-escalating-the-parhat-case/

This is no longer a run of the mill "enemy combatant" case, because Parhat can no longer be considered even an accused "enemy combatant". That follows from two facts:

1. The Court of Appeals' holding that the government, in his DTA hearing, had not introduced enough evidence to meet even the low "preponderence of the evidence" standard (the 50-yard line and a nose). Judging from that opinion, the evidence presented was multiple level hearsay, and not very pursuasive hearsay at that.

2. The Court of Appeals gave the government the chance to retry Parhat's DTA status. The government waived that right and declined to retry Parhat.

The problem is what to do with Parhat and the other Uighurd. Back to Lyle's analysis:


Parhat and the government agree that he should not be sent back to China, his home country, because of his apparently very real fears of further persecution. But the government has told the courts repeatedly it has been unable to persuade any other country to accept him. And, until it does, the government has argued, he must remain at Guantanamo to “wind up” his detention.

The situation with Parhat is apparently not an isolated one. An unknown number of detainees (the number could be substantial) want release, but do not want to be sent back to their home countries, for fear of torture or abuse. Even if ruled not to be enemy combatants, the “wind up” theory would keep them in the Guantanamo prison for unspecified periods.

Recent Chinese problems with Uighurs substantiate the practical problem. Another practical problem is that Parhat and his friends are not white lambs. Their story is that they came to Afghanistan to fight Chinese - the story makes more sense if they came there to learn how to fight Chinese.

If they were simply illegal immigrants to the US, the INS rules would apply; but we brought them here. We do not want to send them back to Afghanistan - they might change their mind about who their enemy is. And, I do not really want them living next door to me.

In light of the legal costs that will build up in this and related cases, the parties should make nice and agree that the government (our taxes) purchase a nice, secure Holiday Inn Express with room service. We might save some money that way.

In any event, here is Parhat's brief and its bottom line:


We concede that there is a substantial practical reason why this Court may wish to implement the Circuit’s ruling in stages. The government is authorized to transfer Parhat to an appropriate and safe third country. And nothing would prevent it from effecting a transfer by exercising its power to deport (again, to a proper country) even after Parhat were physically present. Accordingly, a practical balancing suggests that he should first be paroled here, under such reasonable conditions of release as the Court imposes. The Court may grant to the government a reasonable time to attempt to implement an appropriate transfer before final judgment is ordered in his habeas case. His presence here would, as a practical matter enhance chances of a transfer, and the Court might appropriately impose conditions to protect the government’s legitimate interest in so doing. This must happen promptly. The urgency of relief is only underscored by this Court’s recent determination that it may not intrude judicially into the conditions of confinement in Guantánamo.

http://www.scotusblog.com/wp/wp-content/uploads/2008/08/parhat-reply-dct-8-15-08.pdf

A series of other detainee events ensued after 19 Aug, which seem best discussed one by one. However, one of them has an Uighur update


Detainee hearings start Oct. 6
Thursday, August 21st, 2008 10:12 pm | Lyle Denniston
......
Meanwhile, down the corridor from Judge Leon’s courtroom, U.S. District Judge Ricardo M. Urbina was holding a hearing on the fate of 17 members of an often-persecuted Chinese Muslim minority, the Uighurs, who are being held at Guantanamo. The Pentagon has decided that it will no longer seek to prove that five of them should remain designated as enemies, but the government has not yet found countries other than China to take them.

Judge Urbina chastised the government for saying in court papers that it was “constantly reviewing” its chances for releasing the Uighurs, and yet had not been able to decide whether all of them should remain at Guantanamo under the label “enemy combatant.”

The judge also suggested that he may agree to a request by the Uighur detainees’ lawyers that they be brought personally to the U.S., to appear in court to defend themselves against accusations of terrorist links. “Maybe that is an option,” the judge remarked.

Among the group whose cases are in Urbina’s court is Huzaifa Parhat, who is seeking release into the U.S. to live in the Washington, D.C., area temporarily while he seeks to win his release from continued captivity. The Pentagon has decided he is no longer an “enemy combatant,” but the government is fervently opposing any attempt to bring detainees to the mainland.

http://www.scotusblog.com/wp/detainee-hearings-start-oct-6/

jmm99
08-31-2008, 06:30 AM
We have a fast-stepping judge here


Detainee hearings start Oct. 6
Thursday, August 21st, 2008 10:12 pm | Lyle Denniston
....
In late 2001, just weeks after the government first started taking prisoners in the “war on terrorism,” Bush Administration officials chose Guantanamo Bay as the place to hold those detainees in order to keep them beyond the reach of U.S. courts and away from any terrorist activity. Now, more than six years and four Supreme Court decisions later, the detainees for the first time will get a hearing in civilian court on claims they are being held unlawfully; the first hearing is set to start Oct. 6.

U.S. District Judge Richard J. Leon, who is working on what he calls a “compressed” timetable, disclosed Thursday that he will hold the first habeas hearings on a day that he said “seems only fitting — the first Monday in October.” That, of course, is the same day the Supreme Court returns to work after its summer recess, some four months after its ruling in Boumediene v. Bush giving the Guantanamo detainees a constitutional right to pursue habeas challenges to their captivity.

The Boumediene case (it gets its name from Lakhdar Boumediene, an Algerian, and includes five others from that country, all of whom had been living in Bosnia) is back in District Court, before Judge Leon. Mostly by coincidence, the judge said Thursday, that will be the case that comes up first for a week of hearings in October.

While 14 other District Court judges share the more than 200 Guantanamo habeas cases now on file, it appears that the 24 cases in Leon’s court are moving on the fastest track. The judge said, at a four-hour hearing Thursday, that he “remains committed to conducting hearings in these cases — all 24 — between now and Christmas.” Decisions on whether any detainee wins release could come soon after that. ... [various procedural rulings are discussed in the paragraphs following]

http://www.scotusblog.com/wp/detainee-hearings-start-oct-6/

Nice to see a judge take control of the situation. Based on previous rulings, Judge Leon is not likely to become loopy, and seems aware of practicalities:


from above
.... he said he would not go too far to intrude on operations of the Navy facility there: “It’s a military base,” he said, “it’s not Vegas.”

jmm99
08-31-2008, 06:35 AM
This brings in another aspect of "war crimes".


Detainee torture issue taken to Court
Friday, August 22nd, 2008 5:29 pm | Lyle Denniston.
.....
UPDATE Monday a.m. The case of Rasul v. Myers has now been assigned docket number 08-235.)

In the first move to put claims of torture of Guantanamo detainees before the Supreme Court, lawyers for four Britons formerly held at the Navy prison in Cuba on Friday asked the Justices to overturn a federal appeals court ruling that they had no right to sue Pentagon officials and military officers over the issue.....

The case would give the Justices a chance to rule on whether Guantanamo detainees have any rights under the Constitution beyond the right to challenge their detention in habeas cases, and whether they have any rights under U.S. laws.

The D.C. Circuit Court last Jan. 11 rejected all of the claims of abuse and arbitrary imprisonment, thus scuttling the case. With no dissents noted, the Circuit Court refused on March 26 to rehear the case en banc. The petition in the Supreme Court was filed after attorneys obtained an extension to do so by Friday. ...

The new appeal asks the Justices to rule on three issues:

1. Do the former detainees have a right to sue for “religious abuse and humilation” under the Religious Freedom Restoration Act.? (The Circuit Court found the detainees were not “persons” covered by the Act.)

2. Does the Constitution provide U.S. captives with a constitutional right not to be tortured – or, if there is such a right, was it not established at the time of the mistreatment claimed in this case and thus U.S. offiicials have immunity to lawsuit? (The Circuit Court ruled that detainees have no constitutional rights.)

3. Did the Defense Secretary and senior military officers have the authority to order torture, as coming within the range of their official duties? (The Circuit Court said that any such mistreatment was incidental to officials’ duty in ordering that detainees be interrogated.)

The appeal notes that the Circuit Court had found that “Guantanamo detainees lack constitutioinal rights because they are aliens without property or presence in the United States.” That conclusion, the petition points out, was overturned by the Supreme Court on June 12 in Boumediene v. Bush, recognizing a constitutional right of habeas.

http://www.scotusblog.com/wp/detainee-torture-issue-taken-to-court/

The petition in Rasul, et al., v. Myers, et al., can be found here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/08/rasul-petition-8-22-08.pdf

The Circuit Court panel’s decision can be found here.

http://pacer.cadc.uscourts.gov/docs/common/opinions/200801/06-5209a.pdf

A post on SCOTUSblog discussing the Circuit Court panel decision can be read here.

http://www.scotusblog.com/wp/detainees-barred-from-challenging-torture-abuse/

A petition filed does not mean petition granted - most are denied by SCOTUS; and a constitutional right of habeas does not necessarily mean that all constitutional right follow.

Sooner or later SCOTUS will have deal with the issue of whether some constitutional rights belong only to US citizens (cf., St. Paul); that others extend to US subjects as well; and that still others extend to aliens as well (as in the case of habeas).

One does well to remember that this claim (and others) are solely based on the allegations in a complaint - with at most, some affidavit evidence. Hence, they present the worst case scenario against the defendants. A full-blown trial might well result in many or all of the allegations being found lacking.

The same caution applies to the government's charge sheets in DTA and MCA cases. The actual proofs may fail completely (Parhat) or partially (Hamdan).

jmm99
08-31-2008, 06:40 AM
There are presently three tracks that detainee cases are following:

1. Proceedings before Combatant Status Review Tribunals (CSRTs) to determine enemy combatant status under the DTA, with referral to Military Commission trials (if charge sheets are filed); and, in any case, review by the DC Court of Appeals (e.g., Parhat).

2. Proceedings before Military Commissions under the MCA, with a different path of appellate review. In Hamdan, Judge Allred ignored the CSRT determination and decided Hamdan's enemy combatant status de novo.

3. Habeas proceedings in DC Disrtict Court. Some cases are concurrent in all three tracks.

Denniston's analysis below applies to the first set of proceedings (DTA):


Circuit Court holds firm on DTA review
Monday, August 25th, 2008 10:40 am | Lyle Denniston
....
The D.C. Circuit Court, turning aside a Justice Department plea to cut back sharply on its review of military decisions to detain individuals at Guantanamo Bay, has put its tough review regime back into effect. In a brief order on Friday (found here), the Court without explanation reinstated its pair of decisions in Bismullah v. Gates (Circuit docket 06-1197). That order thus implied that the Circuit Court did not believe the Supreme Court had undercut the prior Circuit rulings, as the Justice Department had contended.

The Circuit Court’s two Bismullah decisions, on July 20 and Oct. 23 of last year, required the Pentagon and other government agencies to produce a potentially wide array of information about detainees, to make the system of civilian court review work as the panel thought Congress intended in the Detainee Treatment Act of 2005. It was not enough, the panel declared, to have before it only the information that the Pentagon had actually considered — in proceedings before Combatanta Status Review Tribunals. This kind of broad review, the Justice Department contended, threatened harm to national security.
....
Instead, in its order on Friday, the Circuit Court panel, splitting 2-1, simply reinstated its prior rulings, thus restoring them as fully binding mandates on how the DTA process would continue to operate. Circuit Judges Douglas H. Ginsburg and Judith W. Rogers signed the order; Circuit Judge Karen LeCraft Henderson dissented.

The order, however, said nothing about a separate motion the Justice Department has made: that all of the scores of DTA cases be put on hold while the habeas cases proceed in District Court. Presumably, the panel will act on that question separately.

http://www.scotusblog.com/wp/circuit-holds-firm-on-dta-review/

The order is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/08/bismullah-order-8-22-08.pdf

A prior SCOTUSblog discussion is here.

http://www.scotusblog.com/wp/analysis-is-bismullah-ruling-a-dead-letter/

jmm99
08-31-2008, 06:44 AM
The name below in part 2 will be familiar to most.

---------------------------------------
The first part deals with the question of Federal judicial control over the MCA system before a final judgment by a MCA military commission. The detainees (minor players) in that case have not been charged. The case does have possible implications for the MCA process.


Circuit Court holds firm on DTA review
Monday, August 25th, 2008 10:40 am | Lyle Denniston
....
UPDATE 3:30 p.m. There have been other developments in detainees’ cases; they are discussed in the continuation of the post below.
.....
1. A hearing scheduled in U.S. District Court Tuesday morning could provide a major test of whether Congress has taken away from the federal courts any authority to oversee the war crimes trial system before there are final verdicts. Thomas F. Hogan, a senior District judge who is coordinating detainees’ habeas cases in District Court, will hold a hearing at 11 a.m. on a plea by attorneys for two Guantanamo prisoners to prevent military prosecutors from meeting with the captives without their lawyers’ consent.

http://www.scotusblog.com/wp/circuit-holds-firm-on-dta-review/

In an ordinary criminal case, this one would be a no-brainer once the defendant lawyers-up. As noted above, the Federal courts are being forced to deal with the issue of who (measured by status) is entitled to certain constitutional rights.

Detainees' motion brief here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/08/al-kandari-motion-7-2-08.pdf

Government's brief here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/08/us-reply-to-al-kandari-7-8-08.pdf

Detainees' reply here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/08/al-kandari-reply-7-10-08.pdf

Note that, if the detainees themselves had a trial pending before a MCA commission, the Federal judge would have a simple answer: don't ask me; ask your military judge for a protective order.

--------------------------------
From the same source as above, we have the five accused man-eaters coming to bat:


2. In a new development affecting the war crimes prosecution of five individuals accused of taking part in the 9/11 attacks — including alleged mastermind Khalid Sheikh Mohammed, defense lawyers asked for added time to file legal motions. Under a present schedule, such motions would be due on Friday of this week. The attorneys asked that the deadline be put off until Nov. 25, contending that the cases that could lead to the death penalty for each of the five accused are so complex — and lawyers’ access to the clients is so restricted — that counsel cannot mount an adequate defense in the time available.

KSM's motion (3+MB) is here.

http://www.aclu.org/pdfs/safefree/us_v_mohammed_defensemotionforrelief.pdf

jmm99
08-31-2008, 06:48 AM
This is not Mr. Parhat himself, but the rest of the Uighurs


Analysis: The meaning of Munaf
Tuesday, August 26th, 2008 12:54 pm | Lyle Denniston
....
Analysis

When the Supreme Court on June 12 found a new constitutional right for Guantanamo Bay detainees, another decision on the same day had little chance of being widely noticed even though it, too, involved detainees’ rights. That ruling [Manuf], in a pair of consolidated cases, focused on prisoners the U.S. military holds in Iraq, not at the U.S. Navy prison compound on the island of Cuba.
....
The point [meaning of Munaf] is well illustrated by two legal briefs, both filed last Thursday in the D.C. Circuit Court, in a series of cases (led by Kiyemba, et al., v. Bush, et al., Circuit docket 05-5487). These cases involve nine Guantanamo detainees — all members of a Chinese Muslim minority (the Uighurs) that has for years suffered persecution in China; these nine were captured elsewhere after they had relocated. ....
......
The government has 167 appeals in the Circuit Court in other cases awaiting the outcome of the Kiyemba litigation, and detainees have three other such appeals now pending. All of them turn primarily upon a single issue: do federal judges have any authority to issue orders of any kind to limit or delay the Defense and State Departments from sending a detainee to another country, after the Pentagon decides not to keep an individual confined at Guantanamo? It is a question that could touch on major constitutional issues, as well as on the meaning of federal laws.

http://www.scotusblog.com/wp/analysis-the-meaning-of-munaf/

The brief for the Uighur detainees is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/08/kiyemba-supp-brief-8-21-08.pdf

The government's brief is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/08/us-supp-brief-kiyemba-8-21-08.pdf

jmm99
08-31-2008, 06:54 AM
This decision by Judge Leon favors the government (and also accords with the DTA and MCA). It is the same standard applied by Judge Allred in Hamdan.


An easier standard for detention
Wednesday, August 27th, 2008 3:10 pm | Lyle Denniston ...
......
NOTE: In a hearing Wednesday on procedural issues in detainee cases in his Court, U.S. District Judge Richard J. Leon expressed concern about the need to have most of the hearings in those cases behind closed doors, because of the use of classified evidence. .... [AP link below]
.....
A federal judge who is moving ahead rapidly to implement a Supreme Court decision and decide whether the Pentagon may continue to hold detainees at Guantanamo Bay decided on Wednesday to require only the lowest level of proof to justify further captivity.

In a case management order that applies to the 24 habeas cases before him, U.S. District Judge Richard J. Leon ruled that it would be up to the government to prove “the lawfulness of detention” case by case, but need do so only by a “preponderance of the evidence.”
......
Judge Leon left himself some room to second-guess the government, not only on the weight of its evidence to support detention, but also on the core issue of what is a “lawful” detention. Each government report offering reasons for an individual’s captivity, the judge said, must “set forth the government's legal basis for detaining” that captive. If it offers evidence that he is an “enemy combatant,” it “must provide the definition of enemy combatant upon which it relies.” .....

http://www.scotusblog.com/wp/an-easier-standard-for-detention/

The case management order is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/08/leon-case-manage-order-8-27-08.pdf

AP news account of the hearing.

http://hosted.ap.org/dynamic/stories/G/GUANTANAMO_DETAINEES?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT

jmm99
08-31-2008, 06:58 AM
The government is being forced to take action - one way or the other - on the DC Circuit's restoration of its discovery orders in the "Bismullah" cases. In an ordinary criminal case, all this would be a no-brainer under the Brady doctrine. Here, it becomes a Supreme Court case - well, not quite yet.


U.S. to try again to curb DTA review
Wednesday, August 27th, 2008 4:02 pm | Lyle Denniston ....
....
UPDATE Friday afternoon
In a move sure to draw government opposition, lawyers for seven Guantanamo Bay detainees asked the D.C. Circuit Court on Friday to order the Justice Department and Pentagon to produce within ten days the complete files, including any secret data, that it has about those individuals. In a motion to compel, the lawyers relied upon the Circuit Court’s reinstated Bismullah v. Gates decisions of last year. In fact, the motion was filed in the Bismullah case itself (Circuit docket 06-1197), and six other appeals by detainees, all challenging their captivity under the Detainee Treatment Act of 2005. The government, the motion argued, has said it was busy compiling these records, and thus should be able to produce them quickly — initially, in classified form, in order to speed access to them for detainees’ lawyers. The Justice Department is likely to oppose this new request, as it goes forward with efforts to undo the Bismullah ruling .....
....
The Justice Department is discussing a return to the Supreme Court, to ask it to curb the authority of a federal appeals court to engage in a wide-ranging review of military decisions to detain prisoners at Guantanamo Bay. The plans, reportedly conveyed to attorneys for detainees, remain subject to approval by the U.S. Solicitor General, it is understood. An initial attempt may be made to get the lower court, the D.C. Circuit Court, to react first.

Under discussion are ways to block, and ultimately to get overturned, the D.C. Circuit order that has revived its broad review mandate. ....

http://www.scotusblog.com/wp/us-to-try-again-to-curb-dta-review/

The detainees' motion to compel discovery is here

http://www.scotusblog.com/wp/wp-content/uploads/2008/08/bismullah-motion-to-compel-8-29-08.pdf

jmm99
08-31-2008, 07:02 AM
This guy is earning his pay - and making the lawyers work. I love it.


UPDATE: Bismullah effect spreading?
Friday, August 29th, 2008 1:51 pm | Lyle Denniston.....
.....
UPDATE
Even as the Justice Department makes plans to try to get higher courts to overturn a broad judicial mandate to produce what it knows about Guantanamo Bay detainees (discussed in the post just below, updated Friday), it is now facing the prospect that the obligation may also extend to detainees’ cases in U.S. District Court. In one of the leading groups of habeas cases, U.S. District Judge Richad J. Leon on Thursday called for new briefs on this controversy.
.....
On Wednesday, lawyers for six detainees — the same six that were involved in the Supreme Court’s ruling June 12 on detainees’ habeas rights (Boumediene v. Bush) — asked Judge Leon to use the Bismullah decision as a basis for ordering the government “to search for and produce” all information that might favor the detainees’ challlenge to captivity — and perhaps “all information” about detainees — for review in habeas proceedings. .....
....
Judge Leon reacted on Thursday, telling each side it could file a new brief on the issue if it wished, with any such brief due next Wednesday. [... but judge, it's Labor Day Weekend ... So, labor ...]
.....
Judge Leon has already reacted somewhat cautiously to a request of detainees’ lawyers to force the government to seek out information that would help the detainees’ cause. In his “case management order” this week, the judge said the government would be obliged to produce information that helps detainees only if it is contained in the materials government lawyers are preparing to submit in habeas cases.

It is not clear, however, that Judge Leon, at the time he issued that order on Thursday, had considered the detainees’ counsel’s new plea — filed the day before — to expand the government disclosure obligation under Bismullah.

http://www.scotusblog.com/wp/update-bismullah-effect-spreading/

The detainees' “notice of subsequent authority” is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/08/bismullah-notice-in-boumediene-8-26-08.pdf

jmm99
08-31-2008, 07:08 AM
This is a confusing news item - or is it that DOJ and its bosses simply do not know what to do. I expect there is some political spin here; but it may indicate that the DOJ system is broken. Draw your own conclusions. Next week will bring some more developments - one can fairly infer.


New DTA, habeas troubles
Friday, August 29th, 2008 10:36 pm | Lyle Denniston.....
.....
The Justice Department, frustrated in its ability to get free of one level of court review of Guantanamo Bay detainee cases, and unable at the other level to keep to is own schedule for turning out reports to justify detention, has taken two significant steps to try to cope. It has vowed to shut down its part in the D.C. Circuit Court’s review of detainee challenges under the Detainee Treatment Act of 2005, and it has formally asked for more time to file in District Court its answers to challenges pending there under the Supreme Court’s Boumediene v. Bush decision.

These developments emerged as top Justice Department officials, joined by Pentagon and intelligence officials, vowed Friday to continue to try to help the courts process some 250 District Court habeas cases that federal judges have insisted on resolving as soon as possible. Officials have made it clear that they consider those cases to have the most claim on the government’s time and resources, and equally clear that they will do no more than they are actually compelled to do on the DTA cases in the Circuit Court.

The Supreme Court, in Boumediene, stressed the importance of moving rapidly with the long-pending habeas cases, and said the detainees did not have to attempt first to ge the Circuit Court to act on their DTA appeals. But the Court also said that the DTA process would remain “intact” and it did not prevent detainees’ lawyers from pursuing that routine, if they chose — as a number have now done.
....
Justice Department lawyers, in a variety of ways in court and out, have made efforts to put the DTA process on hold so that all government agencies involved could focus on the habeas cases. After detainees’ lawyers refused to go along, the Department hardened its position, and now will not supply any information demanded by detainees’ counsel for use in the DTA process. (A Department lawyer outlined that view in this document.) This has set up a tug-of-war in the Circuit Court, and it is not clear when the Circuit Court will try to sort it out.
.....
Meanwhile, on Friday, in a series of filings in District Court, the Justice Department told Senior Judge Thomas F. Hogan that the government was unable to meet a Friday deadline for producing 50 responses to detainees’ habeas challenges. That was a schedule Department lawyers suggested, and Judge Hogan then embraced. ....

http://www.scotusblog.com/wp/new-dta-habeas-troubles/

The bottom line government position is this:


We will not be providing any further record materials at this time. As you know, our motion to hold the entire DTA case in abeyance (including any obligation to produce any record material) is still pending. The pendency of that motion stays any obligation to provide any record material to you. Moreover, we are examining whether to seek further review of the panel's ruling in Bismullah and may seek to overturn the latest order.

Finally, I would note that, under Bismullah II, the record at issue is the historic "government information" actually reviewed by the recorder. The Bismullah II Court recognized that, for good reason, the government may not be able to identify those materials. See Bismullah v. Gates, 503 F.3d 137, 141 (D.C. Cir. 2007) (quoting the Government filing, "[a]t the time, Recorders had no reason to believe that DoD would be required to produce (or explain post hoc) what was not provided to the Tribunal"); ibid. ("We note in the Government's defense that CSRTs made hundreds of status determinations, including those under review in the present cases * * * without knowing * * * the scope and nature of judicial review"). Accordingly, the panel expressly held that the Government could elect not to file the record at all and instead remand the case to the agency. Ibid. Our prior court filings explain that the Government may pursue the remand option if the Bismullah decision is not overturned.

Given all of these factors, we will not be providing you the "government information" or any further record material at this time.

The above document is mentioned in the 2nd to the last paragraph of Lyle's article above.

Various other government position papers are here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/08/us-motion-for-partial-relief-8-29-08.pdf
http://www.scotusblog.com/wp/wp-content/uploads/2008/08/table-on-returns-8-29-08.pdf
http://www.scotusblog.com/wp/wp-content/uploads/2008/08/katsas-decl-8-29-08.pdf
http://www.scotusblog.com/wp/wp-content/uploads/2008/08/hayden-decl-8-29-08.pdf


from Gen. Hayden's declaration
19. The CIA did not receive the first draft factual returns [from DOJ] until 12 August 2008, and received the last batch of factual returns [from DOJ] as recently as 25 August 2008. Nevertheless, the CIA managed to complete its review of a significant number of returns by the 29 August 2008 deadline.

(IMO) The only people who are looking good here are some of the judges who took the bull by the horns and did what they are paid to do - military judge Allred and Federal judge Leon being two examples, in my book.

selil
08-31-2008, 01:39 PM
So, do I see a couple of things happening?

1) The rather strange expectation that Guatanamo would keep prisoners from accessing the United States courts system (an interesting statement by itself) is being systematically dismantled?

2) Is the inaction or stagnation evolving into a cascading failure of the prosecution or was that a foregone conclusion built upon the rules of engagement?

2.b) Is it possible that the administrative/military pseudo judicial process has resulted in some enthusiasm by judges to dismantle that process?

jmm99
09-01-2008, 12:49 AM
and questions that should not be answered too quickly. In short, I need a bit of time to think about them - and to look at the cases I've downloaded and referenced. Might also look at a book or two. We've been here before - bout 140 years ago as I reckon it.

Will get back with a memo. Maybe tomorrow. I posted too much yesterday, here and on another discussion board. My eyes need a rest.

Cheers.

Mike

jmm99
09-01-2008, 07:59 PM
from Selil
1) The rather strange expectation that Guatanamo would keep prisoners from accessing the United States courts system (an interesting statement by itself) is being systematically dismantled?

The answer to this question is a qualified "no"; in part, because the question contains a flawed factual premise. Here is my explanation.

The DTA and MCA (as they are being applied) do not prohibit ultimate access to an Article III Federal court; but they do limit that access to specific courts and time frames. Because the DTA and MCA have different purposes, they have to be analysed separately as they stand (parts I and II) - and then analysed in light of the separate lines of habeas cases that are in process.

I will use some comparisons from domestic law enforcement here, which though not totally on point have been helpful to me in removing some of the mystery from these statutes and procedures. These cases, of course, involve further complications because of classified evidence and the interplay of international law and domestic law. However, our judicial system has a long history of dealing with classified evidence and protecting national security interests.

It also (because of our federal system) has a long history of determining choices of applicable law where more than one set of laws is involved - the law course known in my student days as Conflict of Laws; and of determining the appropriate intereplay between the Federal courts, the state courts and administrative courts - the law courses known in my student days as Federal Courts and the Federal System, and Review of Administrative Decisions.

The detainee cases, for the most part, factually involve situations which in domestic law enforcement fall under the generalized heading of unlawful possession, and sometimes use, of firearms and explosive devices (under the latter heading, murder, attempted murder, etc.), where the detainee is alleged to be either a principal or accomplice. They also may involve elements of run of the mill criminal conspiracies (X was part of a conspiracy with A, B and C to supply arms to the Taliban); and of broader conspiracies (X was a member of AQ and was involved in its A, B, C, D operations - e.g., KSM). The latter type of charge is more akin to a RICO prosecution.

I am dividing this reply in series of posts; otherwise, it will become unmanageable in the editor.

I have also quoted extensively from the statutes - that way you can decide what the law is & not what I say it is.

jmm99
09-01-2008, 08:07 PM
A. The Statutory Framework

The DTA procedures are laid out in the 2006 DTA, which was part of the Katrina Relief Act, Public Law 109-148, 109th Congress. Like most statutes, it provides a construction clause, which in this situation could be something of a de-construction clause:


SEC. 1002
(c) Construction.--Nothing in this section shall be construed to affect the rights under the United States Constitution of any person in the custody or under the physical jurisdiction of the United States.

but also adds, in its amendment of 28 USC 2241, the folowing:


(f) Construction.--Nothing in this section shall be construed to confer any constitutional right on an alien detained as an enemy combatant outside the United States.

Thus, the DTA act was intended to be "constitutional rights neutral" - nothing given, nothing taken away.

The act goes on, in a manner not that foreign to administrative review processes, to provide the DoD with authority to establish rules and regulation for the administrative adjudicatory bodies:


SEC. 1005
(a) Submittal of Procedures for Status Review of Detainees at Guantanamo Bay, Cuba, and in Afghanistan and Iraq.--

(1) In general.--Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the Committee on Armed Services and the Committee on the Judiciary of the Senate and the Committee on Armed Services and the Committee on the Judiciary of the House of Representatives a report setting forth--

(A) the procedures of the Combatant Status Review Tribunals and the Administrative Review Boards established by direction of the Secretary of Defense that are in operation at Guantanamo Bay, Cuba, for determining the status of the detainees held at Guantanamo Bay or to provide an annual review to determine the need to continue to detain an alien who is a detainee; and

(B) the procedures in operation in Afghanistan and Iraq for a determination of the status of aliens detained in the custody or under the physical control of the Department of Defense in those countries.

The act (also in SEC 1005) also provides for review within the DoD by a designated official:


(2) Designated civilian official.--The procedures submitted to Congress pursuant to paragraph (1)(A) shall ensure that the official of the Department of Defense who is designated by the President or Secretary of Defense to be the final review authority within the Department of Defense with respect to decisions of any such tribunal or board (referred to as the ``Designated Civilian Official'') shall be a civilian officer of the Department of Defense holding an office to which appointments are required by law to be made by the President, by and with the advice and consent of the Senate.

Finally, the act in SEC 2005(e)(2) provides for review of DTA determinations by the DC Circuit Court of Appeals, giving some leeway for interpretation.


(e) Judicial Review of Detention of Enemy Combatants.--
.....
(2) Review of decisions of combatant status review tribunals of propriety of detention.--

(A) In general.--Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant.

(B) Limitation on claims.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to claims brought by or on behalf of an alien--

(i) who is, at the time a request for review by such court is filed, detained by the Department of Defense at Guantanamo Bay, Cuba; and

(ii) for whom a Combatant Status Review Tribunal has been conducted, pursuant to applicable procedures specified by the Secretary of Defense.

(C) Scope of review.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of--

(i) whether the status determination of the Combatant Status Review Tribunal with regard to such alien was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor of the Government's evidence); and

(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution
and laws of the United States.

(D) Termination on release from custody.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit with respect to the claims of an alien under this paragraph shall cease upon the release of such alien from the custody of the Department of Defense.

We can summarize the DTA procedure fairly simply.

1. The sole factual and legal issue (one of status) is whether the alian detainee is an "enemy combatant". I am leaving aside for now the substantive issues surrounding the meaning of that term.

2. That determination is made by a Combatant Status Review Tribunal (CSRT), subject to review by an Administrative Review Board (ARB) and, within DoD, by the Designated Civilian Official (DCO).

3. Finally, review by a Article III court is vested in the United States Court of Appeals for the District of Columbia Circuit.

On its face, there seems to me no question that the DTA procedure, if properly applied, would comport with fundamental due process rights under the US Constitution (which is the critical question); and also with the same concepts under the international and comparative laws that I believe are relevant. It is different from what we see in our domestic criminal justice system - but different does not necessarily mean unconstitutional.

jmm99
09-01-2008, 08:13 PM
B. The Paperwork at Issue

The DTA is of general application to all alien detainees, whether at Gitmo or in Iraq or Afghanistan. It represents an initial stage in the process (and for those detainees not charged under the MCA, the final stage). The closest domestic law enforcement analogy is the arrest and initial incarceration phase (police investigation, arrest warrant and affidavit before a magistrate, jail booking).

So, the DTA paperwork should, if properly done, reflect similar features. Many who are reading this are very familiar with the domestic law paperwork, so I will not dwell on that. Police investigative reports (like everything else) may be good, bad or indifferent. My own experience has generally been positive - they nail down the facts of the case, the witnesses, the crime scene, accused's admissions, technical evidence, etc. Of course, certain aspects have to be developed as one moves to the charging stage and into preliminary and trial stages - in MI, by complaint, preliminary examination (usually a bind-over), information, pre-trial motion practice and trial (followed by conviction and hanging - not really, but just checking to see if you are still awake).

For those familiar with domestic law enforcement, I think you will find - if you look at the actual DTA paperwork - that it is not up to the standards set by our police agencies. That is my opinion after after having downloaded (from the DoD webpages) and reviewed some of it. That is rather surprising since the government has had years to prepare this preliminary paperwork.

The reversal in Parhat of the CSRT determination (total lack of evidence), and Judge Allred's felt need to re-determine de novo Hamdan's status as an enemy combatant (he found that status based on the evidence he required to be presented), support my opinion about DTA paperwork.

The skeptic in me sends up a red flag - does the government really have evidence against many of these detainees that would meet the probable cause test which we are so used to in obtaining an arrest warrant - or, in making an arrest without warrant ?

That is, of course, the question being asked by the detainees' attorneys in the "Bismullah" discovery cases. That there should be some discovery of the evidence used to make the CSRT determination seems to me to be a no-brainer - including exculpatory evidence if it exists. The government seems to think differently. The issue is whether the Brady discovery doctrine (Brady v Maryland, from the early 60's) is a fundamental due process rule, since its purpose is to guard against convicting an innocent person.

We could live without Miranda and many of the various search and seizure rules requiring exclusion of credible evidence because of technical errors (the constable has blundered, so the guilty must go free). In fact, we lived under the "totality of circumstances" exclusionary concept for almost 200 years without losing the integrity of our judicial system. The Brady doctrine (applied with some common sense) is of a different order of magnitude.

The "Bismullah" requests also involve requests for discovery of relevant evidence not used in the CSRT determinations - which the government also opposes.

It is interesting that, in SEC 1005(a) of the DTA, we do find a "new evidence" requirement:


(3) Consideration of new evidence.--The procedures submitted under paragraph (1)(A) shall provide for periodic review of any new evidence that may become available relating to the enemy combatant status of a detainee.

That provision is one factor in the "Bismullah" requests for discovery of "government information"

jmm99
09-01-2008, 08:21 PM
I am not going to dwell on the MCA and its commission procedure. MCA is very similar to the courts martial process (albeit with some shortcuts). We have seen one complete trial (Hamdan) under that statute. The military has handled that process well, in my opinion. So, I will address only the provisions for review by Article III courts.

The DTA act in SEC 2005(e)(2) provides for review of MCA commission adjudications by the DC Circuit Court of Appeals, again giving some leeway for interpetation.


(e) Judicial Review of Detention of Enemy Combatants.--
.....
(3) Review of final decisions of military commissions.--

(A) In general.--Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision rendered pursuant to Military Commission Order No. 1, dated August 31, 2005 (or any successor military order).

(B) Grant of review.--Review under this paragraph--

(i) with respect to a capital case or a case in which the alien was sentenced to a term of imprisonment of 10 years or more, shall be as of right; or

(ii) with respect to any other case, shall be at the discretion of the United States Court of Appeals for the District of Columbia Circuit.

(C) Limitation on appeals.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to an appeal brought by or on behalf of an alien--

(i) who was, at the time of the proceedings pursuant to the military order referred to in subparagraph (A), detained by the Department of Defense at Guantanamo Bay, Cuba; and

(ii) for whom a final decision has been rendered pursuant to such military order.

(D) Scope of review.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on an appeal of a final decision with respect to an alien under this paragraph shall be limited to the consideration of--

(i) whether the final decision was consistent with the standards and procedures specified in the military order referred to in subparagraph (A); and

(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States.

The MCA also provides for review of military commission adjudications, in two stages. First, we have the Court of Military Commission Review:


§ 950f. Review by Court of Military Commission Review

(a) ESTABLISHMENT.—The Secretary of Defense shall establish a Court of Military Commission Review which shall be composed of one or more panels, and each such panel shall be composed of not less than three appellate military judges. For the purpose of reviewing military commission decisions under this chapter, the court may sit in panels or as a whole in accordance with rules prescribed by the Secretary.

(b) APPELLATE MILITARY JUDGES.—The Secretary shall assign appellate military judges to a Court of Military Commission Review. Each appellate military judge shall meet the qualifications for military judges prescribed by section 948j(b) of this title or shall be a civilian with comparable qualifications. No person may be serve as an appellate military judge in any case in which that person acted as a military judge, counsel, or reviewing official.

(c) CASES TO BE REVIEWED.—The Court of Military Commission Review, in accordance with procedures prescribed under regulations of the Secretary, shall review the record in each case that is referred to the Court by the convening authority under section 950c of this title with respect to any matter of law raised by the accused.

(d) SCOPE OF REVIEW.—In a case reviewed by the Court of Military Commission Review under this section, the Court may act only with respect to matters of law.

From there, one moves to the DC Circuit and the Supreme Court:


§ 950g. Review by the United States Court of Appeals for the District of Columbia Circuit and the Supreme Court

(a) EXCLUSIVE APPELLATE JURISDICTION.—(1)(A) Except as provided in subparagraph (B), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission (as approved by the convening authority) under this chapter.

(B) The Court of Appeals may not review the final judgment until all other appeals under this chapter have been waived or exhausted.

(2) A petition for review must be filed by the accused in the Court of Appeals not later than 20 days after the date on which—

(A) written notice of the final decision of the Court of Military Commission Review is served on the accused or on defense counsel; or

(B) the accused submits, in the form prescribed by section 950c of this title, a written notice waiving the right of the accused to review by the Court of Military Commission Review under section 950f of this title.

(b) STANDARD FOR REVIEW.—In a case reviewed by it under this section, the Court of Appeals may act only with respect to matters of law.

(c) SCOPE OF REVIEW.—The jurisdiction of the Court of Appeals on an appeal under subsection (a) shall be limited to the consideration of—

(1) whether the final decision was consistent with the standards and procedures specified in this chapter; and

(2) to the extent applicable, the Constitution and the laws of the United States.

(d) SUPREME COURT.—The Supreme Court may review by writ of certiorari the final judgment of the Court of Appeals pursuant to section 1257 of title 28.

So, the DTA and MCA (as they are being applied) do not prohibit ultimate access to an Article III Federal court; but they do limit that access to specific courts and time frames.

That BTW, is not much different from the situation where a state court defendant (regardless of his Federal law claims) must proceed through the state court system - in MI, District Court, Circuit Court, Court of Appeals, Supreme Court - before seeking review by SCOTUS (which is rarely granted).

The state defendant with Federal law claims may also seek habeas relief in Federal District Court, but that relief is limited in both scope and time frame.

It is in the area of habeas review that the DTA and MCA limitations have been dismantled in part.

selil
09-01-2008, 08:22 PM
OK, so here is my question based on the above. It would seem that there is fundamental expectation that Guatanamo is considered to NOT be United States soil and the respective borders of the United States for purposes of jurisdiction are expected to be the International borders. However, in several cases the embassies and bases have been used to create cases that were required to be on United States soil even if in a foreign land (for example possession of illegal substances, sex crimes (not covered by the host land, and DMCA type violations). So doesn't it seem peculiar to see it being used subjectively as a convenience "protocol"?

If you are ever in da region (South East Chicago) I'll buy you a beverage or nine. Now you have me wanting to attend law school when I finish my PhD.

davidbfpo
09-01-2008, 08:23 PM
On 22nd August 2008 The Guardian reported on a high court judgement on a Guantanamo Bay prisoner, who is awaiting trial and I select two key points:

The judgment contains two particularly stinging passages. The judges said Witness B worked with the US "to the extent of making it clear to [Mohamed] that the United Kingdom government would not help [him] unless he cooperated fully with the United States authorities". They added: "The relationship of the United Kingdom government to the United States authorities in connection with [Mohamed] was far beyond that of a bystander or witness to the alleged wrongdoing."

The weblink is: http://www.guardian.co.uk/uk/2008/aug/22/uksecurity.guantanamo

The court judgement, 75 pages: http://image.guardian.co.uk/sys-files/Guardian/documents/2008/08/21/mohamed_full210808.pdf

davidbfpo

jmm99
09-01-2008, 08:33 PM
The DTA SEC 2005(e)(1) amendment to 28 USC 2441 also limits Federal court jurisdiction in two ways:


(1) In general.--Section 2241 of title 28, United States Code, is amended by adding at the end the following:

``(e) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider--

``(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or

``(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who--

``(A) is currently in military custody; or

``(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.''.

The MCA also weighs in and limits habeas and other Federal court review:


SEC. 7. HABEAS CORPUS MATTERS.

(a) IN GENERAL.—Section 2241 of title 28, United States Code, is amended by striking both the subsection (e) added by section 1005(e)(1) of Public Law 109–148 (119 Stat. 2742) and the subsection (e) added by added by section 1405(e)(1) of Public Law 109–163 (119 Stat. 3477) and inserting the following new subsection (e):

(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant
or is awaiting such determination.’’.

The habeas limitations in DTA and MCA have fallen to the Boumediene decision, which has been sliced, diced and discussed above. That decision applies to aliens and hinges on the territorial test for the constitutional scope of the habeas remedy. That was a close 5-4 decision.

Note that a different approach was taken in the Manuf case (US citizens held in Iraq) which applied a citizenship test for the constitutional scope of the habeas remedy. The two decisions are not inconsistent. The latter simply says that US citizens can have more rights than aliens. Manuf was a unanimous decision.

Note that Boumediene's majority opinion was far less sweeping than the 1866 decision in Ex Parte Milligan, which involved a US citizen tried in Indiana which was within the theatre of war (it was a military district), but not within a theatre of hostilities at the time. Besides, the Federal courts were very much open for business. In fact, the commander of the Indiana military district (a lawyer as well as a BG) was very much opposed to using a military commission in Milligan's case. He was relieved from his command.

In any event, the Milligan court reached a unanimous result - invalidating Milligan's proceedings in toto. The justices differed 5-4 in their logic; one side by a more radical constitutional interpretation, the other by a more conservative legislative construction.

The opinions in Ex parte Milligan, 71 U.S. 4 Wall. 22 (1866), are here.

http://supreme.justia.com/us/71/2/case.html

While the habeas limitations of the DTA and MCA are gone - note that the scope of the habeas remedies (if any are granted) still remain a work in process - the "other actions" limitations of the DTA and MCA still remain in effect. They are not necessarily unconstitutional because there are many other considerations involved.

The lower court opinions, so far, have been generally respectful of the "other actions" limitations. E.g., Judge Leon's "it's a naval base, not Vegas."

from DTA (in full above)


``(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who--

``(A) is currently in military custody; or

``(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.''.

from MCA (in full above)


(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.’’.

So, to put it in the simplest terms, the courts are not in the process of dismantling DTA and MCA, but they are interpreting those statutes independently of what the government seems to want.

The habeas limitation was, of course, a "contempt of court" for historical reasons - and was punished accordingly. However, affirmation of a constitutional habeas jurisdiction does not mean that jurisdictionn will be used to grant unlimited habeas relief. That is an issue for the coming months and Judge Leon.

Questions 2 and 2b will probably be answered more briefly - since we have this background noise out of the way.

Now, if permitted, I have to pay some Labor Day attention to my wife; who may not be Ann-Margaret, but is a lot better looking than this stuff

jmm99
09-01-2008, 08:56 PM
Cross-posted on my last part - shades of Pearl Harbor & the 14-part Japanese mesage.


Selil
If you are ever in da region (South East Chicago) I'll buy you a beverage or nine. Now you have me wanting to attend law school when I finish my PhD.

1st sentence - agreed. Also, reciprocal if you get up here (which might be safer). Also, same invitation extended to our UK friend, who hopefully was not Witness B.

As to 2nd sentence, if you are masochist enough, law school should be your pleasure. The actual practice is superior to the schooling.

I'm waiting for the 75 page High Court case to download. Haven't had to read one of those in a while.

As the last sentence of final post indicates, I will return with some sort of answers - sometime this week.

jmm99
09-02-2008, 03:37 AM
I read through Lord Justice Thomas' Opinion, which is quite interesting from a comparative law standpoint; and seems a rather well-written opinion from the standpoint of UK law. I now understand the Norwich case and its requirements to compel 3rd party document disclosure - different from ours, which is usually more direct.

I note that he did not make definitive factual findings confirming BM's allegations; but did find them to be arguable - which was sufficient to support a judgment under Norwich compelling disclosure of the UK government documents. This opinion has to be read carefully as to evidenced facts, alleged facts contested, and alleged facts not contested for lack of knowledge. Lord Justice Thomas makes the appropriate distinctions; the Guardian article was not so circumspect.

According to the NY Times, the UK case may become moot.


World Briefing | Europe
Britain: U.S. Acts on Court Files
By RAYMOND BONNER
Published: August 29, 2008
In a reversal, the Bush administration turned over documents that may support allegations by a Guantánamo Bay detainee, Binyam Mohamed, that he was tortured while in American custody in Pakistan in early 2002, a British court disclosed Friday.....
.....
On Wednesday the State Department informed the British court that the documents had been turned over to the Pentagon official who decides whether a Guantánamo case should go to trial. ...

http://www.nytimes.com/2008/08/30/world/europe/30brief-USACTSONCOUR_BRF.html?ref=world

The MCA charge sheet for Binyam Mohamed is here - his case is linked to Jose Padilla.

http://www.defenselink.mil/news/Nov2005/d20051104muhammad.pdf

Wiki Bio


Binyam Ahmed Mohamed (Arabic: بنيام محمد‎) (also described as Benjamin Mohammed, Benyam (Ahmed) Mohammed and Benyam Mohammed al-Habashi) (born 24 July 1978) is an Ethiopian national who is detained in Guantanamo Bay prison. In 1994, Mohamed sought asylum in the UK. He was captured and transported in the frame of the US extraordinary rendition program.....

http://en.wikipedia.org/wiki/Binyam_Ahmed_Muhammad

ACLU Biography of Plaintiff Binyam Mohamed


NEW YORK - In July of 2002, Ethiopian native Binyam Mohamed was taken from Pakistan to Morocco on a Gulfstream V aircraft registered with the Federal Aviation Administration (FAA) as N379P. Flight and logistical support services for this aircraft were provided by Jeppesen Dataplan, Inc. In Morocco, Mohamed was handed over to agents of Moroccan intelligence who detained and tortured him for the next 18 months. In 2004, Mohamed was rendered to a secret U.S. detention facility in Afghanistan. Flight and logistical support services for this aircraft, a Boeing 737 business jet, were also provided by Jeppesen. In Afghanistan Mohamed was tortured and inhumanely treated by United States officials. Later that same year Mohamed was rendered a third time by U.S. officials, this time to Guantánamo Bay, Cuba where he is presently. ....

http://www.aclu.org/safefree/torture/29912res20070530.html

ACLU Lawsuit vs Boeing Subsidiary


ACLU Sues Boeing Subsidiary for Participation in CIA Kidnapping and Torture Flights (5/30/2007)
.....
NEW YORK - The American Civil Liberties Union today filed a federal lawsuit against Jeppesen Dataplan, Inc., a subsidiary of Boeing Company, on behalf of three victims of the United States government's unlawful "extraordinary rendition" program. The lawsuit charges that Jeppesen knowingly provided direct flight services to the CIA that enabled the clandestine transportation of Binyam Mohamed, Abou Elkassim Britel and Ahmed Agiza to secret overseas locations where they were subjected to torture and other forms of cruel, inhuman and degrading treatment. ...
http://www.aclu.org/safefree/torture/29920prs20070530.html

On this one (which might be messy), we will just have to wait to see what the military judge rules - unless the administration decides to dismiss the charges and release BM. From the charge sheet, he fits the junior man-eater category.

jmm99
09-02-2008, 08:41 PM
I thought there might be a more direct route than a separate legal action, which might exist under US law to obtain evidence to use in a foreign proceeding similar to the MCA (i.e., if the UK had an MCA and a potential defendant sought discovery of US-held documents). Not so, after looking at some resources here at the office.

Mohammed's charges have not yet been referred to a military commission; but even if they were pending for trial, there might be some question about whether discovery of UK documents could be obtained, since the jurisdiction of the US does not extend to the UK.

The MCA discovery provisions are as follows:


‘‘§ 949j. Opportunity to obtain witnesses and other evidence

‘‘(a) RIGHT OF DEFENSE COUNSEL.—Defense counsel in a military commission under this chapter shall have a reasonable opportunity to obtain witnesses and other evidence as provided in regulations prescribed by the Secretary of Defense.

‘‘(b) PROCESS FOR COMPULSION.—Process issued in a military commission under this chapter to compel witnesses to appear and testify and to compel the production of other evidence—

‘‘(1) shall be similar to that which courts of the United States having criminal jurisdiction may lawfully issue; and

‘‘(2) shall run to any place where the United States shall have jurisdiction thereof.

‘‘(c) PROTECTION OF CLASSIFIED INFORMATION.—(1) With respect to the discovery obligations of trial counsel under this section, the military judge, upon motion of trial counsel, shall authorize, to the extent practicable—

‘‘(A) the deletion of specified items of classified information from documents to be made available to the accused;

‘‘(B) the substitution of a portion or summary of the information for such classified documents; or

‘‘(C) the substitution of a statement admitting relevant facts that the classified information would tend to prove.

‘‘(2) The military judge, upon motion of trial counsel, shall authorize trial counsel, in the course of complying with discovery obligations under this section, to protect from disclosure the sources, methods, or activities by which the United States acquired evidence if the military judge finds that the sources, methods, or activities by which the United States acquired such evidence are classified. The military judge may require trial counsel to provide, to the extent practicable, an unclassified summary of the sources, methods, or activities by which the United States acquired such evidence.

‘‘(d) EXCULPATORY EVIDENCE.—(1) As soon as practicable, trial counsel shall disclose to the defense the existence of any evidence known to trial counsel that reasonably tends to exculpate the accused. Where exculpatory evidence is classified, the accused shall be provided with an adequate substitute in accordance with the procedures under subsection (c).

‘‘(2) In this subsection, the term ‘evidence known to trial counsel’, in the case of exculpatory evidence, means exculpatory evidence that the prosecution would be required to disclose in a trial by general court-martial under chapter 47 of this title.

Subsection (d) "Exculpatory Evidence" is the Brady doctrine.

Lord Justice Thomas was fully aware of these provisions, but doubted their direct applicability to the UK.

Possibly, discovery in a foreign country could be obtained more directly by treaty provisions or "letters rogatory" - I have been involved in the those procedures but rarely in 40 years.


US DoS - Preparation of Letters Rogatory
......
Summary: Letters rogatory are the customary method of obtaining judicial assistance from abroad in the absence of a treaty or executive agreement. Letters rogatory are requests from courts in one country to the judiciary of a foreign country requesting the performance of an act which, if done without the sanction of the foreign court, could constitute a violation of that country's sovereignty. Letters rogatory may be used in countries where multi-lateral or bilateral treaties on judicial assistance are not in force to effect service of process or to obtain evidence if permitted by the laws of the foreign country. 22 CFR 92.54 provides a definition of letters rogatory.

http://travel.state.gov/law/info/judicial/judicial_683.html

An equitable bill of discovery seems an alternative remedy. Here is an article on that remedy - which I have never used as a practicing lawyer.


The complaint for a pure bill of discovery: a living, breathing modern day dinosaur?
Publication Date: 01-MAR-04
Publication Title: Florida Bar Journal
Format: Online
Author: Morman, Daniel
......
This article examines the ancient equitable remedy known as a pure bill of discovery. A pure bill of discovery is initiated by filing a complaint which seeks relief in the form of discovery. It is usually brought to obtain disclosure of facts within a defendant's knowledge, or of deeds or writings or other things in the defendant's custody, or in the aid of prosecution or defense of an action in some other court. ... Most discovery requirements in cases can be met by using the standard methods available in the rules. Nevertheless, a complaint for a pure bill of discovery can satisfy certain needs that can not be met under the rules....
.....
A complaint must show that the disclosure of facts which it seeks is necessary to enable the plaintiff to maintain his cause of action or defense in a suit pending or about to be brought in another court, and that the cause of action or defense is legally sufficient. ... The particular matters as to which discovery is sought must, of course, be set out clearly and definitely. ....

http://goliath.ecnext.com/coms2/summary_0199-131418_ITM

Think about the British case a bit more. Would it really be mooted if the US documents were disclosed fully ? Are the US documents the same as the Brit documents ?

jmm99
09-10-2008, 02:06 AM
because of the government's refusal to provide discovery in many detainee cases.


Detainees: U.S. must be punished for delay
Tuesday, September 9th, 2008 6:59 pm Lyle Denniston
......
In a plea for a stiff rebuke of the federal government, lawyers for Guantanamo Bay detainees on Tuesday asked a U.S. District judge to impose severe sanctions for delays that the attorneys said were of the government’s own making — delays that are already slowing down court review of military detentions. Even as that maneuver unfolded, the government asked another District judge to give it more time and new filing deadlines in other detainee cases — a move likely to meet the same resistance. ....

http://www.scotusblog.com/wp/detainees-us-must-be-punished-for-delay/

The bottom line requested by the detainees is:


Response p. 2 (same at pp. 11-12)
....
The Court must do more than tell Respondents to go and sin no more. The Court should order Respondents to adhere to the Scheduling Order. Moreover, to sanction Respondents for violating the August 29, 2008 deadline, and to deter violations of future deadlines, the Court should deny without further consideration all late-filed motions to amend a return (including motions due but not filed by August 29, 2008), unless the Petitioner waives his objection to a late filing. In the case of late-filed original returns, the Court should require Respondents to file within seven days all such returns as were due by August 29, 2008; and if Respondents fail to meet that deadline or any existing future deadline for filing original returns, the Court should impose meaningful sanctions, including appropriate default, evidentiary and/or monetary sanctions. Nothing less will do to ensure Respondents’ future compliance with the Court’s deadlines and protect Petitioners’ rights. ....

http://www.scotusblog.com/wp/wp-content/uploads/2008/09/detainee-opp-to-filing-relief-9-9-08.pdf

Of course, asking for sanctions does not mean you will get them. So, again we have to wait for the judges to decide the issues.

In an ordinary Federal case, I would not want to be on the wrong side of a judge's scheduling order - especially when I suggested the timetable - and when one of my agency's filed a declaration that I was the cause of the delay.

Note: Judge Leon (a pre-9/11 nominee by a day), for example, has governmental experience, as an attorney in investigations concerning covert operations. See, his official bio (friendly looking guy from the photo) and wiki bio

http://www.dcd.uscourts.gov/leon-bio.html
http://en.wikipedia.org/wiki/Richard_J._Leon

In any event, bad PR for DoJ - again.

PS:- Selil. I haven't forgotten your Gitmo question, which in its own way, raises some important issues about the background and reasoning behind the diverse opinions in Rasul and Boumediene. You have taken me back to the 1890s (the guano island & the Japanese consular court murder cases), the Insular Cases, etc. I am hammering away at something, but it will be long (so people can see what the law is, not what I say it is). Anyway, it will be a new thread here if I feel what I write is worthwhile posting - more reference material for all of these cases.

jmm99
09-12-2008, 04:19 AM
First the Uighurs; and then the new classified evidence rules.


Detainees seek to attend hearing
Thursday, September 11th, 2008 5:48 pm Lyle Denniston
.....
Lawyers for a group of Chinese Muslims now being held at Guantanamo Bay asked a federal judge on Wednesday to order the Pentagon to take four of the detainees to Washington, D.C., for the hearing on their plea to be released....
...
Judge Urbina has not yet indicated whether he will allow any detainee to be brought to a hearing in his court. Another judge who is moving along rapidly with detainee cases, District Judge Richard J. Leon, has indicated that detainees can only participate in hearings in his court via a telephone hook-up from Guantanamo.

http://www.scotusblog.com/wp/detainees-seek-to-attend-hearing/

Detainees' motion is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/09/uighur-motion-re-10-7-08-hrg.pdf

As noted in the quote above, Judge Leon has already denied a similar motion for personal presence. Except for affirmation of the habeas jurisdiction, the DC judges have shown a reluctance to interfere with prison administration at Gitmo.

Of more interest is pp.1-2 of the motion, which spells out the four different positions of the government taken on this group of Uighurs as "enemy combatants" or not. Since this .pdf does not allow select text, you will have to open the file and read it. Too long to type out.

Besides Parhat (already in the non-combatant class), 4 more have been stipulated to enjoy that status. A third group of 8 and a fourth group of 4 may have slightly different fact situations. The court ordered the government to put up or shut up by 30 Sep as to the last 12.

---------------------------
A new ruling defining treatment of classified evidence, and security clearance rules for legal counsel, was issued by Judge Hogan.


same source
Meanwhile, Senior District Judge Thomas F. Hogan, who is coordinating most of the detainee habeas cases, on Thursday issued a new order to control how classified information is handled in the cases, and to control arrangements for detainees’ lawyers to meet with them at Guantanamo. It replaces a series of “protective orders” first put in place four years ago.

The 28-page order is here.

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2002cv0828-371

The definition of classified information, and access requirements, are:


8. The terms “classified national security information and/or documents,” “classified information” and “classified documents” mean:

a. any classified document or information that was classified by any Executive Branch agency in the interests of national security or pursuant to Executive Order, including Executive Order 12958, as amended, or its predecessor Orders, as “CONFIDENTIAL,” “SECRET,” or “TOP SECRET,” or additionally controlled as “SENSITIVE COMPARTMENTED INFORMATION (SCI),” or any classified information contained in such document;

b. any document or information, regardless of its physical form or characteristics, now or formerly in the possession of a private party that was derived from United States government information that was classified, regardless of whether such document or information has subsequently been classified by the government pursuant to Executive Order, including Executive Order 12958, as amended, or its predecessor Orders, as “CONFIDENTIAL,” “SECRET,” or “TOP SECRET,” or additionally controlled as “SENSITIVE COMPARTMENTED INFORMATION (SCI)”;

c. verbal or non-documentary classified information known to petitioners or petitioners’ counsel; or

d. any document and information as to which petitioners or petitioners’ counsel were notified orally or in writing that such document or information contains classified information.
.....
16. Without authorization from the government, no petitioner or petitioner’s counsel shall have access to any classified information involved in these cases unless that person has done the following:

a. received the necessary security clearance as determined by the Department of Justice Security Officer; and

b. signed the Memorandum of Understanding (“MOU”), attached hereto as Exhibit A, agreeing to comply with the terms of this Protective Order. ...

And, as to counsel's access to a detainee:


C. Requirements for Access to and Communications with Detainees

8. Security Clearance.

a. Counsel must hold a valid, current United States security clearance at the Secret level or higher or its equivalent, as determined by appropriate DoD intelligence personnel.

b. Counsel who possess a valid security clearance shall provide, in writing, the date of their background investigation, the date such clearance was granted, the level of the clearance, and the agency that granted the clearance. Access will be granted only after DoD verification of the security clearance.

c. Counsel who do not currently possess a Secret clearance are required to submit an application for clearance to the Department of Justice, Litigation Security Division.

Finally, each person accessing classified information must sign the Exhibit A agreement, which provides in pertinent part:


Having familiarized myself with the applicable statutes, regulations, and orders related to, but not limited to, unauthorized disclosure of classified information, espionage and related offenses; The Intelligence Identities Protection Act, 50 U.S.C. § 421; 18 U.S.C. § 641; 50 U.S.C. § 783; 28 C.F.R. § 17 et seq.; and Executive Order 12958; I understand that I may be the recipient of information and documents that belong to the United States and concern the present and future security of the United States, and that such documents and information together with the methods and sources of collecting it are classified by the United States government. In consideration for the disclosure of classified information and documents:

(1) I agree that I shall never divulge, publish, or reveal either by word, conduct or any other means, such classified documents and information unless specifically authorized in writing to do so by an authorized representative of the United States government, or as expressly authorized by the Protective Order entered in the United States District Court for the District of Columbia in the above captioned cases.

(2) I agree that this Memorandum of Understanding and any other non-disclosure agreement signed by me will remain forever binding on me.

(3) I have received, read, and understand the Protective Order entered by the United States District Court for the District of Columbia in the above-captioned cases, and I agree to comply with the provisions thereof.

This 28-page order replaces the prior protective orders entered in 2004. It appears that Judge Hogan is starting the process of gaining control over the situation - i.e., removing possible grounds for the government to refuse or delay discovery of evidence.

CloseDanger
09-13-2008, 02:27 AM
Art. 5. The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

"Noncombatants" fall not under convention period. Neigh Constitutional, nor Geneve.

Ergo, their status is determined by the same laws that govern their adversary, Which under profound wisdom established The Uniformed Code Of Military Justice as an equal act of Justice on both our and their "Soldiers".

In the case of GTMO, it is a military tribunal. The prisoners do not consign to anything whatsoever. No code at all. They are merely Men without a religion, nation, country, or funding entity worth a damn.

To show the world that it is okay to officially recognize this kind of fraud (these prisoners) WOULD be criminal.

Your most profound argument before Justice is that you walked a straight line by what is legally, morally, and Godly true. And easily verifiable as well.

jmm99
09-16-2008, 04:52 PM
The battle between the government and the detainees has two fronts - the DC Circuit on DTA cases and the DC District on habeas cases. However, it is resolving itself into one issue - the collision between classified data and application of the Brady discovery doctrine.

Since the government has conceded that it cannot meet the discovery timetable it set, it has had to go to a fallback position.


U.S. seeks to escalate detainee delay dispute
Monday, September 15th, 2008 8:11 pm Lyle Denniston
.....
Seeking to head off court-imposed punishment for failing to meet deadlines for filings in Guantanamo Bay detainee cases, the Justice Department on Monday sought to raise the stakes, foreseeing two potential threats to national security if it is sanctioned. ...
....
The core of this new dispute is the simple one of meeting deadlines — in fact, deadlines that the government sought, over detainees’ objections that they were too generous. The government has conceded it has not been able to meet them, and it is seeking relaxation of them until it can try to catch up.

But it has become increasingly apparent that the underlying controversy is over classified information — how much of it there is, who gets to see it, what process should be used to prepare it for court review, what effect will it have on continued detention of prisoners.

http://www.scotusblog.com/wp/us-seeks-to-escalate-detainee-delay-dispute/

The government's reply in the District Court, seeking relief from the present scheduling order, is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/09/us-response-on-detainee-delay-9-15-08.pdf

The reply first contains the concession; notes the need to prepare new factual returns; and then eventually reaches its bottom line:


(reply, pp. 2, 3, 11)
....
As explained in connection with its Motion for Relief, the Government underestimated the time it would take to accomplish the development and finalization of amended and original factual returns in the pending habeas cases. When it could not meet the benchmark it had initially represented to the Court as attainable, it requested relief from the Court in the form of an additional 30 days to complete the filing of the first 50 returns.....
....
... Petitioners have wrongfully interpreted the Governments’ desire to present the strongest possible case for detention as an admission that the Government now finds the records of the Combatant Status Review Tribunal (“CSRT”) “inadequate” to justify detention. See, e.g., Pet. Opp. at 9 n. 7. The Government’s development of new factual returns, however, recognizes that significant legal changes have occurred since the original CSRTs were done and the original returns were filed, and it admits of the possibility of factual changes regarding the cases against detainees. ...
....
.... Petitioners seek to prevent the Court from considering late-filed amended returns and to allow the Government only seven days to file original returns on pain of default or evidentiary sanctions.7 Imposing such sanctions because the Government was overly optimistic in its estimates of how long it would take to ramp up production of returns would not force Respondents alone to pay the price. It would force the American people to shoulder the burden, either in the form of increased risk of the erroneous release of individuals whom the government has determined are enemies of the United States, or in the form of reckless and inappropriate dissemination of classified information without careful review and vetting by the intelligence agencies charged with protecting American interests....

Most (all) readers in this forum will be concerned about the danger of "inappropriate dissemination of classified information". In assessing that risk, one should go back to Judge Hogan's protective order (cited in post # 86 above), and read the whole thing. Then, draw your own conclusions as to whether the court's order will be adequate to the task.

My broken crystal ball suggests that the DC District judges will probably cut the government some slack on the timing of discovery, but will not be that impressed by the classified data arguement on its merits.

------------------------------
On the DC Circuit front, we have a slightly different government approach.


from SCOTUSblog source above
....
Meanwhile, the Justice Department made a new effort in D.C. Circuit Court to shut down at least temporarily that Court’s part in reviewing government detention decisions.....
....
... the Department said in its newest filing that the Circuit Court should put some 190 such detainee cases on hold until after District Court judges resolve the prisoners’ habeas claims. At a minimum, it said, no action should be taken on the motion to compel until after the Circuit Court has decided whether to put the detainee cases aside.

The government's reply filed in the DC Circuit is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/09/us-reply-bismullah-mtn-to-compel-9-15-08.pdf

There, we have this interesting bit of advocacy:


(response pp.4-5)
...
As the Government’s abeyance motions explain, holding the DTA cases, such as these, in abeyance is appropriate given the pendency and rapid movement of the habeas litigation. The two types of cases are duplicative. And the Supreme Court in Boumediene directed that habeas move forward "prompt[ly]," while at the same time holding the DTA proceedings to be a constitutionally inadequate substitute for habeas corpus. Boumediene, 128 S. Ct. at 2275. Thus, Judge Hogan has entered an order requiring expedited briefing on case procedures and the production of at least 50 factual returns every month with respect to cases he is coordinating. Scheduling Order, In re Guantanamo Bay Litig., Misc. No. 08-442 (D.D.C. July 11, 2008). Moreover, the Government has additional obligations in the cases pending before Judges Leon and Sullivan. Indeed, Judge Leon recently issued an order scheduling the first merits hearing in a case before him for October 6, 2008. See Scheduling Order, Boumediene ~. Bush, Civ. Case No. 04-1166 (D.D.C. Aug. 27, 2008).

So, while the government is moving in DC District to delay its proceedings, it is moving in DC Circuit to stay its proceedings because the DC District is moving ahead so quickly.

In the government's defense (fair is fair), the response does specify the efforts being undertaken here:


(response pp. 5-6)
...
The preparation of factual returns in the habeas cases is an enormous undertaldng. As the Government recently explained to the district court, the Department of Defense has approximately 30 attorneys working exclusively on the habeas litigation (with more to be deployed), and has diverted intelligence personnel to work full-time in support of the habeas litigation. See Respondent’s Motion for Partial and Temporary Relief from the Court’s July 11,2008 Scheduling Order, In Re Guantanamo Bay Litigation, No. 08-442 (filed Aug. 29, 2008), at 4. The Department of Justice has assigned or detailed more than 50 attorneys to producing factual returns and litigating the more than 250 habeas cases, and the CIA presently has more than 50 attorneys, paralegals, subject matter experts, and classification officials involved in the process of reviewing classified factual returns - a necessary step to their submission in the habeas litigation. ... The Government’s resources are finite, and they will not permit it to litigate 190 DTA cases and more than 200 fast-track habeas cases at the same time at the rate ordered by the district courts.

So, a question to those in law enforcement. If your prosecutor's office had roughly 130 attorneys, could it handle some 400 cases (recall these are basically unlawful firearms and explosives cases) on an expedited basis ?

----------------------------------------
I am also aware of the litigation game - known as "graymail" - where the threatened use of classified data, sources and methods, is a tool to force an advantageous settlement or dismissal of charges.

Here is a recent example (not a "War Crimes Case"), where the government is claiming the defendant is doing exactly that. The defendant, on the other hand, claimed the government had improperly influenced the grand jury - that claim was rejected by the judge.


News - Channel 8
Ex-CIA Exec Facing Trial Says He'll Expose Agents, Programs
posted 8:58 pm Tue September 09, 2008
McLean, Va.
....
A former top CIA official accused of corruption and fraud is threatening to expose the identities of numerous agents and programs as part of his defense, prosecutors said. ... In a court filing, prosecutors allege that former CIA executive director Kyle "Dusty" Foggo is trying to gum up the works of his trial, scheduled for November, by delving into classified information that is irrelevant to his case.

http://www.news8.net:80/news/stories/0908/552040.html

Many of the filings in the Foggo case have been sealed because of references to classified data. Federal judges do know how to protect classified data.

jmm99
09-17-2008, 05:17 AM
trying to figure out what the DoJ's game plan is.

Yesterday, it seemed to be (based on its responsive briefs) to stay the DC Circuit cases (under DTA); and to obtain more time to file amended reports in the DC District habeas cases (which include both DTA and MCA cases). That was then ... this is now (as of 22:33 tonite).


Early test of detention reasons
Tuesday, September 16th, 2008 10:33 pm Lyle Denniston
.....
The Justice Department, in seeking to bolster its claims to continue holding scores of detainees at Guantanamo Bay, has been filing a stack of new reports in court to update its reasons. In fact, it has said it plans to file amended reports in nearly all of the 250 habeas cases now in District Court. ...

http://www.scotusblog.com/wp/early-test-of-detention-reasons/

The immediate action is again before Judge Leon, where five detainees are challenging a large submission of amended reports


(same source as above)
....
The attorneys sought to bring on that test by asking U.S. District Judge Richard J. Leon, who has about two dozen detainees’ cases in his Court and is moving them rapidly, to strike from court records the massive filing the government made about five Algerians in the case titled Boumediene v. Bush ....
.....
At issue are both the classified and unclassified versions of a 53-page “narrative” of information, plus 134 attached exhibits. The classified version was filed August 22, and a heavily redacted public version was filed Sept. 5. ...

The detainee's main argument is that no government official has signed the documents under oath verifying the truth and reliability of the information. The detainee's motion is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/09/boumediene-motion-dct-9-16-08.pdf

The motion's main thrust is:


(motion pp.1, 3, 4)
....
This Court ordered the Government to submit any material it wished to add to its previously filed “return” – i.e., its explanation why the Petitioners were being imprisoned – on or before August 22. Briefing and Scheduling Order, Boumediene v. Bush, No. 04-1166, Dkt. No. 125 (RJL) (D.D.C. July 31, 2008). The Court also ruled that the Government bears the burden of proof to show that Petitioners’ imprisonment is lawful. Case Management Order, Boumediene v. Bush, No. 04-1166, Dkt. No. 142 (RJL) (D.D.C. Aug. 27, 2008).
.....
Although the facts alleged by the Government in support of continued imprisonment are contained in the Narrative, no officer of this Court has attested that the alleged facts are true or have a good-faith basis in fact. The Narrative – the Government’s summation of the reasons why the Petitioners have been and continue to be imprisoned – is unsigned. No one from the Government has put his or her name to the allegations – not the Government’s counsel from the Department of Justice (who signed the cover memo, but not the rest), nor Rear Admiral Thomas, who cautiously declares under penalty of perjury only that the Narrative contains “information” that the Department of Defense used to “establish” and “substantiate [Petitioners’] detention.” Thomas Decl. ¶ 3. Admiral Thomas does not declare under penalty of perjury that the “facts” alleged within the Narrative are, to the best of his knowledge, information, and belief, all true.

Nobody does....
....
Surely someone at the Department of Justice is willing to do that, if these allegations are to be given the weight and credibility that the Government contends are sufficient to justify indefinite military detention. Failure of an officer of the Court to sign the Narrative certainly reinforces Petitioners’ arguments regarding the insufficiency and vagueness of the Government’s allegations.

Therefore, Petitioners respectfully request that the Court order the Government to file a signed Narrative, or a signed certification from counsel of record attesting to the veracity of the unsigned Narrative. If Government counsel will not sign, Petitioners request that the Court strike the Narrative and its accompanying exhibits. [going on to cite various cases striking unsigned pleadings under FRCP Rule 11 and 28 U.S.C. § 2243, the Habeas Act] ...

A large amount of classified information is contained in the government's exhibits (most everything). That data cannot be independently checked for accuracy. Thus, besides the statute and rule, the argument is plausible that someone should stick out his or her neck to sign and swear that, "to the best of his (her) knowledge, information and belief", all factual allegations are true. We shall see what Judge Leon does with this one.

jmm99
09-21-2008, 06:55 AM
As predicted (in post #88), the government has a added 30 days (from 31 Aug - so really about a week from the order date) to complete presentation of its first 50 submissions - with 50 more to be filed each month thereafter.


No punishment for U.S. delay on detainees
Friday, September 19th, 2008 7:15 pm Lyle Denniston
.....
The federal judge overseeing some 200 detainees’ cases on Friday gave the government added time to supply its reasons for holding the prisoners and refused to impose any punishment for delays up to now, but warned that his patience may be growing thin. ...
..... The first 50 such returns are now due by Sept. 30, a month later, and 50 more will be due each month until all have been filed. ...

http://www.scotusblog.com/wp/no-punishment-for-us-delay-on-detainees/

The order is here

http://www.scotusblog.com/wp/wp-content/uploads/2008/09/hogan-order-9-19-08.pdf

The opinion explaining the order is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/09/hogan-opinioin-9-19-08.pdf

The order adds this interesting option for the government - transfer or release of detainees:


(order, p.2)
The Court further ORDERS that, pending further order of the Court, the government need not file factual returns or motions to amend factual returns at this time for petitioners approved for transfer or release from the United States Naval Base at Guantanamo Bay, Cuba.

The opinion makes it clear that the schedule is now a mandate:


(opinion, pp.5-6)
As it is disappointed in the government’s failure to meet the schedule the Court adopted based in part on the government’s assurances, the Court grants the government’s motion reluctantly. ... But the Court admonishes the government that, in allowing it an additional thirty days to file each set of factual returns in these cases, the Court is not merely setting a “goal” for which the government is to “strive,” ... Rather, the Court is ordering the government to produce at least fifty factual returns by month’s end, followed by at least fifty more each month thereafter until production is complete. Nor is the government’s “doubt that Petitioners’ counsel can respond, and the Court can adjudicate, cases at that pace,” Gov’t Reply 4, a basis on which the government can rely to disobey an order of this Court.

While the Court is not unsympathetic to the government’s current workload and that, since Boumediene was decided a little over three months ago, government “[a]ttorneys and others from multiple agencies have worked long and hard, nights and weekends,” see Gov’t Mot. 10-11, 10 n.3, the government has detained many of these petitioners for more than six years, and the time has come to provide them with the opportunity to fully test the legality of such detention in a prompt, meaningful manner. .....
.....
Review of the public and ex parte declarations assures the Court that the government is now on notice of the time needed “to accomplish the development and finalization of amended and original factual returns in the pending habeas cases,” Gov’t Reply 2. Going forward under the revised schedule resulting from the Court’s granting of its motion, consequently, the government cannot claim as a basis for failing to meet deadlines imposed by this Court that it “simply did not appreciate the full extent of the challenges posed,” Gov’t Mot. 3. Except for good cause shown, therefore, the Court will not tolerate any further delay. ....

Meanwhile, in Judge Leon's court, the first habeas evidentiary hearing is scheduled to begin in 2 weeks. The government has not yet convinced him to extend his timetable.


(same SCOTUSblog above)
The Justice Department has made a similar request for more time to file returns in the two dozen cases being handled by a different District judge, Judge Richard J. Leon. That judge had several times told Justice Department lawyers that, if the process was slowed down, he would summon government officials to his courtroom to explain in person.

Judge Leon has yet to rule on the sufficiency of the evidence already submitted - that is, whether it can be unsworn or whether a jurat will be required.

jmm99
09-22-2008, 08:22 PM
There are three cases pending, which have been discussed in prior posts; but which do not involve the DTA and MCA cases involving Gitmo detainees. This is a brief update on them.

--------------------------------------
The Arar and Rasul cases involve claims of civil liability for alleged torture, etc. While the issues are somewhat different in each case, they boil down to which (if any) government officials can be sued in tort for the alleged offenses - none of these cases has been tried.

Ashcroft et al. off the civil liability hook (post # 46)


Arar v. Ashcroft
....
Synopsis
Arar v. Ashcroft is a federal lawsuit challenging the rendition of a Canadian citizen to Syria, by the U.S. government, where he was tortured, forced to falsely confess, and released after one year without ever being charged.
.....
Status
On December 9, 2008, oral argument will be heard by the Second Circuit Court of Appeals en banc.

http://www.ccrjustice.org/ourcases/current-cases/arar-v.-ashcroft

Torture as a Federal Tort Claim ? (post # 65)


Rasul v. Rumsfeld
....
Synopsis
Rasul v. Rumsfeld is a lawsuit against former Secretary of Defense Donald Rumsfeld on behalf of four former detainees seeking damages for their arbitrary detention and torture while detained at Guantánamo.
.....
Status
On January 11, 2008, the Court of Appeals for the D.C. Circuit dismissed the case. The court affirmed the district court's dismissal of the constitutional and international law claims, and reversed the district court's decision that the Religious Freedom Restoration Act (RFRA) applied to Guantanamo detainees, dismissing those claims as well. On August 22, 2008, the plaintiffs filed a petition for certiorari before the U.S. Supreme Court.

http://www.ccrjustice.org/ourcases/current-cases/rasul-v.-rumsfeld

--------------------------------------------
Hamdan & al-Marri Updates (post # 48)


Al-Marri v. Pucciarelli
....
President’s domestic detention power tested
Friday, September 19th, 2008 1:30 pm Lyle Denniston
.....
Lawyers for the only detainee seized in the U.S. under presidential order and still in military captivity urged the Supreme Court on Friday to rule that no federal law and no part of the Constitution allows the President to order such detentions.

http://www.scotusblog.com/wp/presidents-domestic-detention-power-tested/

This is a re-play of the Civil War case of Ex Parte Milligan, 71 U.S. 2 (1866); except that Al-Marri is a documented alien rather than a US citizen. The outcome will very likely hinge on the legal distinction between the theatre of operations (worldwide, assuming a GWOT), and a theatre of active hostilities (where US courts are not open for business) - and on whether SCOTUS will draw a distinction between US citizens (Milligan) and documented aliens.

-------------------------------------------
Since the issues in these cases are quite distinct from the issues in the Gitmo "War Crimes" cases, I will start new threads for them when I have the time.

jmm99
09-23-2008, 07:42 PM
but I can bar transfers that would interfere with my habeas cases.

---------------------------------------------
A while ago, Selil was interested in whether the Federal courts would address prison conditions at Gitmo. I've noted an apparent reluctance by the DC District judges to involve themselves in that area (e.g., Judge Leon's decision not to bring the detainees before him at the habeas hearings he has scheduled).

Now, we do have a decision on this issue from Judge Hogan, as these cases move along and the law becomes clearer as to its outside parameters.


UPDATE: Boumediene and judicial powers
Monday, September 22nd, 2008 4:43 pm Lyle Denniston
...
UPDATE: Readers may note that the following contains materials from an earlier post on Monday, titled “Narrow reading of Boumediene.” The following is a complete rewrite to take account of other significant developments on Monday.
....
In those two orders, Judge Hogan gave a narrow interpretation of the Supreme Court’s Boumediene ruling. Hogan found that the Military Commissions Act of 2006 had taken away all authority of federal courts to examine “transfer, treatment, trial, or conditions of confinement” of any captive found by the government to be an “enemy combatant.” The Supreme Court did not nullify that provision in Boumediene, Hogan wrote, so the courts “have no jurisdiction” over detainees’ pleas over the conditions of their imprisonment at Guantanamo. One of the detainees sought access for his lawyers to his medical records and sought a blanket and mattress in his cell at Guantanamo; the other detainee sought uncensored copies of records and staff reports regarding his medical problems — he has had seizures.

http://www.scotusblog.com/wp/narrow-reading-of-boumediene/

The two orders and opinions, which are identical, are here and here.

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2004cv1254-293
https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2008cv1360-32

The key MCA provision before Judge Hogan is this:


(Latif opinion, p. 1)

In relevant part, Section 7 of the Military Commissions Act of 2006 (“MCA”), 28 U.S.C. § 2241(e), provides:

(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

(2) [N]o court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

The part in italics (1) was held unconstitutional by SCOTUS in Boumediene. Judge Hogan held that SCOTUS did not intend to hold part (2) unconstitutional; and that it took away his jurisdiction on the two petitions dealing with "detention, transfer, treatment, trial, or conditions of confinement".


(Latif opinion, p. 2, 3)

Cognizant of the long-standing rule of severability, this Court, therefore, holds that § 7(a)(2) remains valid and strips it of jurisdiction to hear a detainee’s claims that “relat[e] to any aspect of the detention, transfer, treatment, trial, or conditions of confinement,” 28 U.S.C. 2241(e)(2). See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (holding that a court must “refrain from invalidating more of the statute than is necessary whenever an act of congress contains unobjectionable provisions separable from those found to be unconstitutional” (internal alterations and quotations omitted)).
.....
In sum, while the Supreme Court’s decision in Boumediene gives Petitioner the right to challenge the fact of his confinement, 128 S. Ct. at 2262 (“Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention.”), it says nothing of his right to challenge the conditions of his confinement, id. at 2274 (“[W]e need not discuss the reach of the writ with respect to claims of unlawful conditions of treatment or confinement.”). And MCA § 7(a)(2) extinguishes this Court’s jurisdiction to hear claims relating to such conditions. The Court, therefore, will deny Petitioner’s motion.

This is a logical opinion, based on a conservative (in the non-political sense) approach to statutory construction. It also has the practical advantage to the Federal judge of not becoming the administrator of Gitmo (e.g., "It's a naval base; not Vegas" - Judge Leon).

Lyle Denniston and Marty Lederman differ a bit on the implications of Judge Hogan's order:


(Lyle, from above source)

If Judge Hogan’s rulings withstand appeals, they would wipe out many of the claims that detainees have made since Boumediene – challenges to transfers, to transfers without first notifying detainees’ lawyers, to a lack of access to medical care and to their lawyers, to torture or abuse or to other living conditions in the various camps at Guantanamo.....

(Marty, from source below)

Lyle writes ... I think this is not quite right. What Judge Hogan held in the Latif case, fairly unremarkably, is simply that section 7(a)(2) of the MCA strips courts of power to consider GTMO detainees’ claims challenging conditions of confinement and transfers, and that the Supreme Court’s Boumediene decision did not resolve the constitutionality of section 7(a)(2).

Judge Hogan did not address whether and to what extent challenges to conditions or transfers are constitutionally protected (in habeas or otherwise) and, if so, whether section 7(a)(2) is constitutional, because the petitioner did not raise that constitutional argument.

http://www.scotusblog.com/wp/gtmo-conditions-and-transfer-claims/

Marty is technically correct - for some reason, the constitutionality of part (2) was not argued.


(Latif opinion, p. 2)

Rather than arguing that MCA § 7(a)(2) is unconstitutional, Petitioner contends ....

So, the constitutionality of part (2) is still an open question - technically.

jmm99
09-23-2008, 07:49 PM
--------------------------------------------
Judge Hogan also entered another order, which prohibited the transfer of one of the Gitmo detainees. Based on the redactions (name, place, etc.), the record in that case is largely classified.

We know of the order from a DoJ letter to the DC Circuit, with the redacted order, which is part of the public record in the presently under-appeal case of Kiyemba v. Bush, Nos. 05-5487, 05-5489, here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/09/doj-kiyemba-letter-9-22-08.pdf

The letter (p.1-2) notes:


Pursuant to Rule 28(j), Fed. R. App. P., appellants/cross-appellees hereby submit copies of Judge Hogan’s order in In re Guantanamo Bay Detainee Litigation, Misc. No. 08-mc-0442, barring the transfer of a detainee. The order was issued under seal and then released publicly with redactions (including the date of issuance). The redacted-public version is attached.
.....
In light of the district court’s rationale, it appears the district courts are now poised to bar any transfer of a Guantanamo detainee. This reality counsels in favor of this Court’s expeditious resolution of the current appeals. We believe that in this context, if possible, this Court should resolve the key issues as soon as possible after oral argument and, if necessary, issue an order disposing of the issues prior to a full opinion.

The full text of the redacted order seems worthy of quote - if for no other reason than to prove that the Federal court system is capable of protecting classified information:


Pending before the Court are Petitioner’s (1) xxxx Motion For A Temporary Restraining Order Enjoining Transfer Of Petitioner To xxxx ("Injunction Motion") and (2) Motion xxxxxxxx.

For the reasons given during the telephonic hearing held on xxxx, the Court ORDERS that Petitioner’s Injunction Motion is GRANTED. Specifically, finding it necessary to protect its jurisdiction over Petitioner’s petition for a writ of habeas corpus, pursuant to its remedial authority under the All Writs Act, 28 U.S.C. § 1651, see Belbacha v. Bush, 520 F.3d 452 (D.C. Cir. 2008) (holding that, notwithstanding Section § 7(a)(2) of the Military Commissions Act of 2006, district court has authority under 28 U.S.C. § 1651 to enjoin transfer to protect its jurisdiction to determine the constitutionality of § 7(a)), the Court temporarily enjoins the government from transferring Petitioner from the United States Naval Base at Guantanamo Bay, Cuba, to xxxx pending the United States Court of Appeals for the D.C. Circuit’s decision in Kiyemba v. Bush, No. 05-5487 (consolidated with Nos. 05-5488, 05-5489, 05-5490, and 05-5492), which is set for oral argument on September 25, 2008.

The Court further ORDERS that Petitioner’s Motion xxxx is GRANTED in part and DENIED in part. Specifically, xxxxxxxxxxxxxx the government is not prohibited from sharing information contained in such pleadings with representatives of xxx.

This order is consistent with Judge Hogan's orders above (though not perfectly consistent).

The purpose of the habeas proceeding is to determine whether the government has evidence of probable cause (50 yards plus a nose) to believe that the detainee is an enemy combatant - if so, the MCA applies; if not, it does not.

If, for purposes of the habeas proceeding, the detainee were presumed to be an enemy combatant, 7(a)(2) would apply and bar any anti-transfer order. A transfer (detention in a foreign country X under its control, for example) could then be used to defeat the habeas proceeding, since the US would no longer have jurisdiction over the detainee.

Judge Hogan refused to grant that presumption for purposes of the habeas hearing. For purposes of prison conditions, he employed that presumption (at least implicitly) to dismiss the two prison condition petitions.

The three cases might have been handled in a slightly different manner, as follows:

1. The anti-transfer order would be justified by Judge Hogan's logic and denial of any presumption that habeas petitions are "enemy combatants" - the only issue in the habeas proceedings.

2. The petition about prison conditions would not be decided until after the habeas petition is decided on the merits. That would be a right of judicial scheduling and primacy.

3. The presumption re: "enemy combatant" would be rejected for all purposes (which IMO is correct); but that would be of no use to the detainee if the court found probable cause that the detainee was an enemy combatant. In that case, 7(a)(2) would apply to bar the petition on prison conditions. If the court found no probable cause (as the DC Circuit did in Parhat), then the question is the appropriate remedy - for which, we are still looking.

jmm99
09-27-2008, 03:37 AM
Reuters
September 11 suspect calls U.S. trial "inquisition"
Wed Sep 24, 2008 3:32pm EDT
.....
By Randall Mikkelsen
GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) ....
....
"We are your enemy," Khalid Sheikh Mohammed told the judge, Marine Col. Ralph Kohlmann. "You are an officer in the United States armed forces ... Myself and my brothers will be judged by the same armed forces that are killing our people." Mohammed spoke in English as he outlined objections at a pretrial hearing to Kohlmann on behalf of himself and four accused September 11 co-conspirators, who face a potential death sentence if convicted. ....

http://www.reuters.com/article/domesticNews/idUSTRE48N0IM20080924?sp=true

KSM's advocacy came in support of the detainee's motion to disqualify the military judge under MCA §949f.(a) & (b):


(a) ....The military judge and members of a military commission under this chapter may be challenged by the accused or trial counsel for cause stated to the commission. The military judge shall determine the relevance and validity of challenges for cause.
...
(b) ...The military judge may not be challenged except for cause...

See also RCM Rule 902, Disqualification of military judge, Manual for Courts-Martials - 2008 ed., p. II-88, for the standards under the UCMJ, to the same effect.

The judge denied the motion.

Looks like KSM and his four friends plan on active participation in the trial.

jmm99
10-02-2008, 08:21 PM
but, not quite yet.


All Uighurs now off “enemy” list
Wednesday, October 1st, 2008 9:48 pm Lyle Denniston
.......
The Justice Department, in a move that could put new pressure on a federal judge to decide whether Guantanamo prisoners are to be released when no longer considered “enemy combatants,” has decided to take all 17 members of a Chinese Muslim minority — the Uighurs — off of that enemies list.
....
.... lawyers for the 12 prisoners promptly asked the judge handling their habeas cases — District Judge Ricardo M. Urbina — to order their immediate release after a hearing in his Court next Tuesday. “The government,” that memo said, “has abandoned any right to contend that it may justify the imprisonment of any petitioner before this Court on the grounds that he is an ‘enemy combatant.’ ”

http://www.scotusblog.com/wp/all-uighurs-now-off-enemy-list/

The government's filing is here

http://www.scotusblog.com/wp/wp-content/uploads/2008/10/uighur-status-memo-9-30-08.pdf

The Uighurs' petition for immediate release is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/10/uighur-memo-10-1-08.pdf

The interesting legal point here is that, by conceding that the Uighurs are not "enemy combatants", the government has, in effect, restored their full habeas rights - as well as any other rights barred by MCA. At least that is what they are arguing:


But our dispute with the government on this point is now academic, for the government has conceded it away in this case. By its own terms, the habeas-stripping statute applies only to an alien “determined by the United States to have been properly detained as an enemy combatant or [who] is awaiting such determination,” 28 U.S.C. § 2241(e)(1). Subsection (2), which purports to bar ancillary remedies — such as, presumably, remedies related to conditions of confinement — also applies only to that defined population. Id. § 2241(e)(2). The mandate has issued in Parhat v. Gates, which means that, as a matter of law, Parhat has never been properly determined to be an enemy combatant. All the other Petitioners are “in the same category,” the
government now says. Thus, even if the habeas-stripping statute succeeded in lopping off statutory rights for other Guantanamo prisoners, Sections 2241 and 2243 (and the rest of statutory habeas) were never stripped as to these Petitioners.

We'll see what Judge Urbina will do with this petition next Tuesday.

Judge Urbina's bio here.

http://www.dcd.uscourts.gov/urbina-bio.html

jmm99
10-07-2008, 05:06 PM
This did not take long.


Federal Judge Orders Uighurs in U.S. by Friday
Tuesday, October 7th, 2008 12:29 pm | Ben Winograd
....
A federal judge has ordered the government to release a group of 17 Chinese Muslims held at Guantanamo Bay into the United States, and to present in his courtroom at 10 a.m this Friday.

At a hearing this morning in US District Court in Washington, Judge Ricardo Urbina said the government no longer possessed authority to detain the Uighurs, whom the government has conceded are not enemy combatants and has acknowledged cannot be returned to China for fear of potential persecution.

Judge Urbina ordered a subsequent hearing to be held October 16th, at which members of the Department of Homeland Security could speak to what conditions they wish to apply to the Uighurs presence in the country.

http://www.scotusblog.com/wp/federal-judge-orders-uighurs-in-us-by-friday/

This decision, if it stands, has somewhat limited application to Gitmo detainees in general. The requirement for release from Gitmo to the US (where the detainees will presumably be treated as undocumented immigrants - since the judge ordered DHS into the picture) is a final determination, or concession by the government, that the detainee is not an enemy combatant.

We shall see if the government appeals.

jmm99
10-08-2008, 05:44 PM
That didn't take long either. DoJ has moved the DC Circuit to stay Judge Urbina's order.


U.S. asks Circuit Court for speed on Uighurs
Tuesday, October 7th, 2008 11:46 pm | Lyle Denniston
.....
The Justice Department, in an emergency filing Tuesday night, asked the D.C. Circuit Court to act by no later than tomorrow on its request for a temporary order blocking a judge’s order that 17 Chinese Muslim detainees at Guantanamo Bay be transported to Washington, D.C., this week. The Department said action within the next day was necessary “in order for the government to seek an emergency stay from the Supreme Court, if necessary.” .....
....
Judge Urbina has refused to stay his order, and has refused to issue a short administrative stay to allow the Justice Department to pursue its appeal.

http://www.scotusblog.com/wp/us-asks-circuit-court-for-speed-on-uighurs/

The reference to SCOTUS in the filing is instructive. The DC Circuit in Parhat (posts above) cleared him of the "enemy combatant" charge (complete lack of evidence) and instructed Judge Urbina to proceed quickly on the other Uighur cases.

The DoJ then conceded that all of the Uighurs were in the same boat as Parhat - thus, none are "enemy combatants". Given that concession, Judge Urbina treated the case as an ordinary habeas case and ordered "the bodies to be brought before him".

Since the DC Circuit has already ruled on the merits, the DoJ probably does not expect it to stay the order. So, the probable need for DoJ to invoke SCOTUS.

Judge Urbina’s oral ruling, and the full hearing transcript, can be found here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/10/urbina-transcript-10-7-08.pdf

The transcript is worth reading (for education about how to conduct a hearing); here is an example of a judge taking charge in a nice way - and eliminating the spin:


(pp. 4-5)

All right. Let me suggest to you how we're going to do things. I'm going to make some preliminary rulings that will put everyone on the same page as far as salient matters are concerned, and then I believe that counsel have provided more than ample briefings on the issues before the Court today.

If counsel really feel the strong need to iterate, and I don't mean reiterate what's already been stated in your very well prepared and generous submissions, if you feel the need to emphasize something once again, you'll have that opportunity briefly. I will make some more rulings, and if those rulings necessitate the calling of witnesses for more information relevant to the issues extent at that point, then we will call the witnesses.

First of all, let me say that the authorizations that have been submitted representing the authority of the Petitioners' counsel to act on their behalf are satisfactory. I accept them and I have examined them, particularly under the guidelines provided by Adem versus Bush.

Secondly, I'd like to confirm that the Uighurs before the Court in this matter today have similar factual backgrounds, that is to say that the parties acknowledge that there are no material differences between the individual Petitioners that the Court should be made aware of at this time.

If the answer to that question is "yes," then the factual determination made by this circuit in Parhat will apply to all the Petitioners. Are we in agreement? MR. WILLETT: Your Honor, we believe the Government has conceded that point. THE COURT: All right. I know that as of September the 30th the remaining -- the Uighurs not previously recognized as non-enemy combatants have now been designated as non- -- or treated as non-enemy combatants; is that correct? MR. O'QUINN: That's correct, Your Honor. THE COURT: All right. So is my assumption correct? MR. O'QUINN: Yes, Your Honor. ...

The transcript is also instructive in showing that Federal judges, albeit legal beagles as we all are, are more concerned with national security issues than legal technicalities - questions by Judge to DoJ counsel:


(pp.15-17)

THE COURT: What is the risk to -- the security risk to the United States? What page is that on? What is the security risk to the United States should these people be permitted to live here? What is it? You've had seven years to study this issue. What is the security risk?
....
THE COURT: I'm not talking about status. I'm talking about what is the security risk. What is the risk to national security if these individuals were admitted? Forget about the legal --
.....
THE COURT: So your answer is these -- these Uighurs are a risk to national security because Congress says so. MR. O'QUINN: My answer, Judge Urbina, without offering any -- you know, I don't have available to me today any particular specific analysis as to what the threats of -- from a particular individual might be if a particular individual were let loose on the street.

Judge Urbina's bench opinion ordering release is at pp. 29-43.

He makes a couple of points that should be of comfort to active duty soldiers serving in a war zone - that is, his opinion does not impose a strait-jacket on them in initially handling detainees. The context is Congress' 2001 AFUMFA and the DoD order of 7 Jul 2004 defining "enemy combatant":


(pp. 30-31)

This standard defines an enemy combatant as, quote, an individual who was part or supporting -- part of or supporting Taliban or al Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners. Thus far, this standard is the only one recognized by the Supreme Court for legally detaining individuals under the Authorization For Use of Military Force Act.
.....
In this case, the Government has already absolved the Petitioners of their enemy combatant title; that is to say, they have indicated that none of these are to be treated as enemy combatants, so its theory for continued detention is based on an inherent Executive authority to quote/unquote wind-up detentions in an orderly fashion.

Initially, the Petitioners' protest that this wind-up authority should -- should it exist, would not apply to them because they were never lawfully detained in the first instance, but in Boumediene, the Supreme Court made it clear that habeas is not available the moment a person is taken into custody, and in any event, the record is too undeveloped as to the circumstances regarding their transfer from Pakistan officials to U.S. custody to make that determination.
....
Accordingly, the Court assumes, for the sake of this discussion, that the Petitioners were lawfully detained and that the Executive does have some inherent authority to wind up wartime detentions.....

One hopes that this standard (that is, initial detention can be lawful, even though the subsequent final legal determination is that the detainee should no longer be detained) will be followed. Otherwise, we would force MAJ Smith to make definitive legal determinations that SCOTUS has problems with.

jmm99
10-08-2008, 05:54 PM
After Judge Urbina ruled, the political spin machine went into gear - statements from the White House (Dana Perino) and DoJ are at urls posted below quotes:


(from Ms. Perino)
... The district court's ruling, if allowed to stand, could be used as precedent for other detainees held at Guantanamo Bay, including sworn enemies of the United States suspected of planning the attacks of 9/11, who may also seek release into our country. ...

http://www.scotusblog.com/wp/wp-content/uploads/2008/10/perino-on-uighurs-10-7-08.pdf

This is total Bravo Sierra - this ruling is limited to the Uighurs (conceded by DoJ not to be "enemy combatants") - I think I have explained that point enough.


(from DoJ)
... Today’s ruling presents serious national security and separation of powers concerns and raises unprecedented legal issues. ...
....
....During the time between the presentment of the Uighurs on October 10 and the hearing on October 16, the court ordered that the government have no supervision or oversight of the released individuals.

http://www.usdoj.gov/opa/pr/2008/October/08-ag-903.html

This is lesser Bravo Sierra. DoJ counsel at argument was unable to articulate the national security risk to the US posed by the 14 Uighurs (see above).

The case does raise separation of powers issues - many of which have been caused by the unprecedented claims to Executive powers by the Bush Administration (IMO - and I am somewhat biased toward Executive power, but there can be too much of a good thing).

The "no supervision or oversight of the released individuals" comes from an off-hand remark of the judge with DoJ counsel toward the end of the hearing - the context was the judge's request that the Uighurs not be arrested on immigration charges once they entered the US for Friday's hearing !

The DoJ and DHS on Friday will have the opportunity to request "supervision or oversight" of the Uighurs pending next week's hearing on what the specific terms of their release will be.

The "no supervision or oversight of the released individuals" claim is in fact belied by the terms of the order proposed by the detainees' attorneys:


It is FURTHER ORDERED as follows:

The Court, having reserved the right and power to impose such conditions as it deems reasonable, orders that the government produce each of the Petitioners in this Court on Friday, October 10, 2008, at 10:00 a.m., at which hearing the Court will order their release and impose such short-term terms and conditions of release as it then finds and rules to be reasonable and appropriate; and

That each of the Petitioners and the government shall appear in this Court at a hearing to be commenced on October 16, 2008, to address such other and further terms and conditions of release as the Court may find and rule to be reasonable and appropriate. The parties may offer evidence and argument as to such terms and conditions. The Court directs that the government provide a representative of the Department of Homeland Security to be present at the hearing.

http://www.scotusblog.com/wp/wp-content/uploads/2008/10/uighurs-proposed-order-10-7-08.pdf

The DoJ notice of appeal and stay filing are here:

http://www.scotusblog.com/wp/wp-content/uploads/2008/10/notice-of-appeal-uighurs-10-7-08.pdf

http://www.scotusblog.com/wp/wp-content/uploads/2008/10/us-stay-motion-uighurs-cadc-10-7-08.pdf

jmm99
10-08-2008, 08:02 PM
but, first of all, the final order issued by Judge Urbina, in pertinent part:


ORDERED that upon entry into the United States, the U.S. Marshals Service shall assume custody of and house the petitioners until presentment before the court on Friday, October 10, 2008 at 10:00 am.

http://www.scotusblog.com/wp/wp-content/uploads/2008/10/urbina-custody-order-10-8-08.pdf

As I said, Bravo Sierra from the political spinners.

Now, onto the rapidly developing story.


Detainee lawyers seek familiar Circuit panel
Wednesday, October 8th, 2008 1:55 pm | Lyle Denniston
.....
Seeking to get an appeal panel that has already shown skepticism toward the government’s handling of Chinese Muslim detainees at Guantanamo Bay, lawyers for those 17 prisoners asked the D.C. Circuit Court on Wednesday to assign those same three judges to hear the Bush Administration’s new appeal on the captives’ legal rights.

http://www.scotusblog.com/wp/detainee-lawyers-seek-familiar-panel/

The detainees' emergency motion is very simply 6 pages of hard-hitting factual and legal points limited to the particular facts of this case - most all of which cannot be contested. Draw your own conclusions; here it is.

http://www.scotusblog.com/wp/wp-content/uploads/2008/10/ca-panel-request-re-uighurs-10-8-08.pdf

The DoJ opened the door and now the defense team is walking through it. Since the DoJ wants action today, we should be getting some more news soon enough.

jmm99
10-09-2008, 02:17 AM
New DC Circuit panel - new briefing schedule.


Detainees’ entry to U.S. blocked, for now
Wednesday, October 8th, 2008 6:55 pm | Lyle Denniston
UPDATED 7:05 p.m.
The D.C. Circuit Court blocked, for at least eight days, the entry of 17 Guantanamo Bay detainees into the U.S., putting on hold a federal judge’s order for their release. ....
.....
The stay order was issued by Circuit Judges Karen LeCraft Henderson, A. Raymond Randolph and Judith W. Rogers.

http://www.scotusblog.com/wp/detainee-lawyers-seek-familiar-panel/

The three-judge panel, issuing the order, was totally different from the panel that heard the original Parhat appeal and issued a unanimous opinion clearing him (Chief Circuit Judge David B. Sentelle and Circuit Judges Merrick B. Garland and Thomas B. Griffith).

The order is a temporary administrative stay, which provides:


Upon consideration of the emergency motion for stay pending the court’s disposition of a motion for a stay pending appeal, it is

ORDERED that the district court’s order directing that appellees be released into the United States and brought to the district court on October 10, 2008, be stayed pending further order of the court. The purpose of this administrative stay is to give the court sufficient opportunity to consider the merits of the motion for stay pending appeal and should not be construed in any way as a ruling on the merits of that motion. See D.C. Circuit Handbook of Practice and Internal Procedures 32 (2007). It is

FURTHER ORDERED that appellants hand-serve and hand-file their motion for
stay pending appeal by 4:00 p.m., October 10, 2008; appellees hand-serve and handfile a response to the motion by 4:00 p.m., October 14, 2008; and appellants handserve and hand-file any reply by 4:00 p.m., October 16, 2008.

http://www.scotusblog.com/wp/wp-content/uploads/2008/10/ca-stay-on-uighurs-10-8-08.pdf

The detainee's brief opposing the emergency stay can be found here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/10/uighit-opp-to-stay-10-8-08.pdf

The last page (p.25) is a letter from Bill Delahunt (D) and Dana Rohrabacher (R) requesting DoD to release the Uighurs.

Judge Urbina's order for release, subject to imposition of conditions at the Friday 10 Oct and Thursday 16 Oct hearings, is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/10/urbina-release-order-10-8-08.pdf

That order is now stayed until the DC Circuit hears the DoJ's motion to enter a long-term stay until the DoJ's appeal of the release order is heard. To summarize:


1. The DoJ's motion for a temporary stay has been granted.

2. The DoJ's motion for a stay during the pendency of its appeal of the release order will be decided after Thursday of next week.

3. If that stay is granted, the DoJ's appeal on the merits of releasing the detainees will be briefed, argued and decided. How long that will take is up to the DC Circuit panel.

4. If that stay is denied, the appeal will still continue; but Judge Urbina would then have his hearings to impose conditions for release.

Have to look around and see what Dana R has to say about all this.

jmm99
10-09-2008, 03:21 AM
All bios (snipped here) are from the Federal Judicial Center. Use the search function at the following page to get the full bios.

http://www.fjc.gov/public/home.nsf/hisj

-----------------------------------------
Old Parhat Panel: Circuit Judges David B. Sentelle (Chief Circuit Judge), Merrick B. Garland and Thomas B. Griffith


Sentelle, David Bryan
Born 1943 in Canton, NC

Federal Judicial Service:

Judge, U. S. District Court, Western District of North Carolina
Nominated by Ronald Reagan on July 25, 1985, to a seat vacated by Woodrow W. Jones; Confirmed by the Senate on October 16, 1985, and received commission on October 17, 1985. Service terminated on October 19, 1987, due to appointment to another judicial position.

Judge, U. S. Court of Appeals for District of Columbia Circuit
Nominated by Ronald Reagan on February 2, 1987, to a seat vacated by Antonin Scalia; Confirmed by the Senate on September 9, 1987, and received commission on September 11, 1987. Served as chief judge, 2008-present.


Garland, Merrick B.
Born 1952 in Chicago, IL

Federal Judicial Service:

Judge, U. S. Court of Appeals for District of Columbia Circuit
Nominated by William J. Clinton on January 7, 1997, to a seat vacated by Abner Joseph Mikva; Confirmed by the Senate on March 19, 1997, and received commission on March 20, 1997.


Griffith, Thomas Beall
Born 1954 in Yokohama, Japan

Federal Judicial Service:

Judge, U. S. Court of Appeals for District of Columbia Circuit
Nominated by George W. Bush on February 14, 2005, to a seat vacated by Patricia M. Wald; Confirmed by the Senate on June 14, 2005, and received commission on June 29, 2005.

------------------------------------------
New Parhat Panel: Circuit Judges Karen LeCraft Henderson, A. Raymond Randolph and Judith W. Rogers


Henderson, Karen LeCraft
Born 1944 in Oberlin, OH

Federal Judicial Service:

Judge, U. S. District Court, District of South Carolina
Nominated by Ronald Reagan on June 3, 1986, to a seat vacated by William W. Wilkins, Jr.; Confirmed by the Senate on June 13, 1986, and received commission on June 16, 1986. Service terminated on July 11, 1990, due to appointment to another judicial position.

Judge, U. S. Court of Appeals for District of Columbia Circuit
Nominated by George H.W. Bush on May 8, 1990, to a seat vacated by Kenneth W. Starr; Confirmed by the Senate on June 28, 1990, and received commission on July 5, 1990.


Randolph, Arthur Raymond
Born 1943 in Riverside, NJ

Federal Judicial Service:

Judge, U. S. Court of Appeals for District of Columbia Circuit
Nominated by George H.W. Bush on May 8, 1990, to a seat vacated by Spottswood W. Robinson, III; Confirmed by the Senate on July 13, 1990, and received commission on July 16, 1990.


Rogers, Judith Ann Wilson
Born 1939 in New York, NY

Federal Judicial Service:

Judge, U. S. Court of Appeals for District of Columbia Circuit
Nominated by William J. Clinton on November 17, 1993, to a seat vacated by Clarence Thomas; Confirmed by the Senate on March 10, 1994, and received commission on March 11, 1994.

120mm
10-09-2008, 12:31 PM
Thanks for this running set of updates. I know not many have commented on this thread, but it has rapidly become one of my "must reads" each morning.

selil
10-09-2008, 01:21 PM
Thanks for this running set of updates. I know not many have commented on this thread, but it has rapidly become one of my "must reads" each morning.

What he said. I'm fascinated.

jmm99
10-09-2008, 05:01 PM
I am gratified. Ultimate thanks belong to Lyle Denniston and the others at SCOTUSblog, who are following these and other cases like hawks. Anyway, we (SWC) beat AP by about 8 hours, since this is their lead this morning.


By HOPE YEN, Associated Press Writer
Thu Oct 9, 8:14 AM ET

WASHINGTON - A group of Chinese Muslims set to be freed into the U.S. this week from Guantanamo Bay found their freedom stymied yet again after a simple government plea: What's a couple more weeks or so in jail after nearly seven years?

That in essence was the Bush administration's argument to a federal appeals court in a 19-page emergency request that maintained there would be only "minimal harms" if the detainees were to stay at Guantanamo a while longer.

http://news.yahoo.com/s/ap/20081009/ap_on_go_ot/guantanamo_chinese_detainees

-------------------
The DC Circuit's decision yesterday gave me some pause - thus, the bios for the judges on the old and new Parhat panels. To me, there is no substantial political (R vs D) difference between the two panels. So, I have excluded that as an explanation.

Why did it give me pause ? If this were a normal habeas proceeding, the hearings set by Judge Urbina would most likely have gone forward (the law on that is well-presented in the detainees' motion and brief). Moreover, the DC Circuit had options beyond simply granting the DoJ's emergency stay.

For example, it could have allowed the hearings to proceed, but subject to conditions that the USMS take custody and house the Uighurs throughout the course of the proceedings; that the terms and conditions of their release be finally determined; and that, before that order be executed, the DoJ have an adequate time period to renew its stay motion pending its appeal from the final release order.

In that way, the DC Circuit would have a final release order, with a full factual record including witness testimony, for its review on the appeal. It could then decide whether to allow release during appeal (the norm) or to stay release (the exception). That is the normal course in Federal appeals, where interlocutory appeals are not generally favored.

So, why the terse entry of a stay ? The President has made it very clear on more than one occasion that only he has the power to order detainees to and from Gitmo. Judge Urbina's order to "bring the bodies before him" contradicts that assertion of sole Executive power - and could create a collision either at Gitmo, or when the detainees landed in the US to be placed in the hands of the USMS.

Such collisions did occur during our Civil War (very early in Lincoln's administration), where provost marshals simply refused to honor the habeas orders, and had their troopers ready to physically prevent the USMS from taking custody of the detainees.

So, in that sense, the DC Circuit's very terse stay order has some logic. That is my take on it - others may well have different opinions.

jmm99
10-11-2008, 03:29 AM
and the DoJ finds some facts to present to the DC Circuit - and to us.


U.S. sees danger if detainees come
Friday, October 10th, 2008 5:02 pm | Lyle Denniston
.....
The Justice Department moved on Friday to get a longer postponement of any move of Guantanamo Bay detainees to the U.S. mainland, saying that “could pose a danger to the public at large.” It asked the D.C. Circuit Court to allow no such transfer until the Supreme Court has considered the delay issue. ....

http://www.scotusblog.com/wp/us-sees-danger-if-detainees-come/

The DoJ motion is here

http://www.scotusblog.com/wp/wp-content/uploads/2008/10/us-stay-motion-10-10-08.pdf

There are three points here:

1. The factual basis for the stay - see below (this interested me the most)

2. The legal basis for the stay.


The issues raised (motion, pp.8-18) are immigration law issues (the DTA, AUMF, etc., seem no longer operative, except for some reliance on the Executive's inherent authority to wind-up detentions at pp.16-18). So far as immigration law is concerned, this case will be one of "first impression". Whether documented or undocumented, prior immigration cases involved aliens who came here voluntarily. The DoJ motion characterizes Judge Urbina's orders (quoted in prior posts) as something quite different from what they say to me. You will have to judge that for yourselves.

3. The proposed timetable.


(motion, p.3)

To minimize delay, the Government requests such expedition. We propose that 'the Court issue a briefing schedule under which the opening merits brief would be due 14 days fiom the date of the Court's ruling on this motion, the response brief would be due 14 days later, and the reply brief would be due 7 days after that. Oral argument could be scheduled at the Court's earliest convenience following the conclusion of briefing.

Since the final filings on the stay motion will not be made until late next week, a fast-track here would be a DC Circuit decision on the merits of Judge Urbina's "release order" in about 60+ days.

However, since we are approaching the Holidays, with any sort of luck, the decision should spill into the start of the new administration - when we probably can expect new policies and new personnel at Justice.

PS: The Uighurs are also involved in another proceeding before the DC Circuit (the Bismullah I, II and III DTA discovery process), which has just reared its head again (SCOTUSblog also) - but, it is too complicated to cover in a single post. Have to think about how to present that one.

----------------------------------------------
1. The factual basis for the stay.


(motion, pp.4-6)

1. Petitioners are 17 Chinese Uighurs who traveled to Afghanistan to receive weapons training at military camps run by the East Turkistan Islamic Movement (ETIM). See Op. 2d3. They were subsequently captured by coalition forces and turned over to the U.S. military, which held them as enemy combatants at Guantanamo Bay. Each petitioner received a hearing before a CSRT to determine whether he was properly detained as an enemy combatant. Virtually all of petitioners testified at those hearings and/or told government interviewers that they had gone to Afghanistan to seek weapons training to fight the Chinese Government.

Thus, many petitioners stated that they were trained to use assault weapons at the camps. See, e.g., Mamet (ISN 102) CSRT 32 (stating that he as "given * * * instruction with an AK-47"); Mahnut (ISN 277) CSRT 16 (same); Nasser (ISN 278) CSRT 28 (same); Hassan (ISN 250) CSRT 2 (same); Memet (ISN 328) CSRT 16 (he "received training on pistols, AK-47, and two types of rifles"); Tourson (ISN 20 1) CSRT 15 (he "trained to use the rifle"); Sabour (ISN 275) CSRT 15 (the "training we got [was] on the Kalashnikov rifle"); Abdurehim (ISN 289) CSRT 15- 16 (same); Ali (ISN 280) CSRT 17-1 8,20 (same); Jalaldin (ISN 285) CSRT 20 (same); Osman (ISN 282) CSRT 16, 18 (same); Parhat (ISN 320) CSRT 15, 19 (he "trained on two * * * kinds of weapons," including the Kalashnikov).

The petitioners (with one exception) also explained that they sought this military training for the purpose of attacking China or Chinese interests. Rahman, for example, testified that he sought "training to fight back against the Chinese government." See Rahman (ISN 281) CSRT 14, 16. Parhat stated that he went to a camp to "train to fight * * * against the Chinese" and that he "would fight along the side of any group who was against the Chinese." Parhat (ISN 320) CSRT 44, 46. Tourson declared his intent to "go back to fight against the Chinese government." See Tourson (ISN 201) CSRT 23; see also, e.g., Noori (ISN 584) CSRT 20 (stating that purpose of his training was "to return to his home and fight the Chinese"); Mahnut (ISN 277) CSRT 4 1-42 (stating that he wanted to take "action against the Chinese military"); Mamet (ISN 102) CSRT 70; Hassan (ISN 250) CSRT 1; Abdurehim (ISN 289) CSRT 13; Memet (ISN 328) CSRT 17; Semet (ISN 295) CSRT 19; Razakah (ISN 219) CSRT 17; Sabour (ISN 275) CSRT 18; Ali (ISN 280) CSRT 23; Nasser (ISN 278) CSRT 28; Jalaldin (ISN 285) CSRT 16; Osman (ISN 282) CSRT 16, 19-20, 23. [2] [2] The remaining petitioner, Arkin Mahmud, stated that he was en route to a military training camp, but was captured before he arrived. See Mahrnud (ISN 103) CSRT 12.

2. In Parhat, this Court reviewed, pursuant to the Detainee Treatment Act, a CSRT's determination that Parhat is an enemy combatant. The Court held that, in order to establish Parhat's enemy combatant status, the Government was required to present reliable evidence that (1) Parhat was part of or supporting ETIM, (2) ETIM was associated with a1 Qaida or the Taliban, and (3) ETIM is engaged in hostilities against the United States or its coalition partners. 532 F.3d at 843. The Court held that the CSRT's determination was not valid because the evidence "lacked sufficient indicia of * * * reliability" to establish the second and third elements. Id. at 836,844.

However, the Court did not find unreliable the evidence that Parhat had been a part of or a supporter of ETIM, which consisted primarily of "Parhat's own statements and those of other Uighur detainees." Id. at 843-44. The Court described Parhat's repeated statements at his CSRT that "the government of China" is his "enemy." Id. at 842.

Note that the original Parhat panel found the evidence "lacked sufficient indicia of * * * reliability" to establish that (2) ETIM was associated with a1 Qaida or the Taliban, and (3) ETIM is engaged in hostilities against the United States or its coalition partners.

Some entries on East Turkistan Islamic Movement (ETIM; as to which, there seems some controversy) are here.

http://www.cfr.org/publication/9179/

http://en.wikipedia.org/wiki/East_Turkestan_Islamic_Movement

Now, gentle readers - I am not knowledgeable about this group. So, some help from the audience would be useful here - then, we could assess whether they are a threat, and against whom.

jmm99
10-15-2008, 07:46 PM
Detainees: U.S. has forfeited claims of threats
Tuesday, October 14th, 2008 6:21 pm | Lyle Denniston
....
Lawyers for 17 detainees being held at Guantanamo Bay argued in a new court filing Tuesday afternoon that the government gave up its chance to show that the men would be dangerous if brought into the U.S., and cannot now try to use new and unsupported claims to keep them from coming. ....
.....
Under the Circuit Court’s temporary stay order, the Justice Department is to file a reply brief on Thursday.

http://www.scotusblog.com/wp/detainees-us-has-forfeited-claims-of-threats/

The detainees' brief (10.3 MB - I have no idea why this 23 page brief is this big in MB, but it is) is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/10/uighurs-opposition-to-stay-10-14-08.pdf

The detainees' brief has some interesting additional facts about the case (as did the DoJ in its brief). For example, we have this:


(p.2)
Last June, Judge Urbina regained custody of Appellees' habeas cases. The oldest, Kiyemba v. Bush, No. 05-1 509, dated from July 2005. As to ten Appellees, the Government never filed a habeas return. [1]

[1] As to those ten it still has not. No habeas return was filed for Appellees Nasser (ISN 278), Semet (ISN 295)' Memet (ISN 328), Parhat (ISN 320), Jalaldin (ISN 285), Ali (ISN 280), Osman (ISN 282), Ghaffar (ISN 281), Sabour (ISN 275), and Noori (ISN 584). The Government produced part of the "record on review" in some DTA cases, but these documents were not made part of the habeas record.

See Ex. A at 1 (conceding that Appellees may use in habeas cases classified CSRT hearing records filed in their DTA cases, an action Appellees never needed to take because the Government never made a return or otherwise presented or contested facts). The Government filed a habeas return-in each case only the CSRT hearing record-for Appellees Mahnut (ISN 277), Mahmud (ISN 103), Mamet (ISN 102), Razakah (ISN 219), Tourson (ISN 201), Mohammad (ISN 250), and Thabid (ISN 289). As to those, the Government avoided any traverse by its September 30 concession that it would not contest that each was a noncombatant.

I find this amazing (lawyers are supposed to file answers to complaints); but then I find the DoJ's need for additional time in the somewhat related discovery proceedings in both the DC Circuit and DC District also amazing.

The key issue to me about the Uighurs is the security issue (who would house them and what custodial safeguards would be provided - monitoring devices, etc.). The brief covers that to some extent.


(pp.4-5)
The court offered the Government a last chance - soliciting a factual proffer of "the security risk to the United States should these people be permitted to live here." Ex. H (Hrg. Tr. ("Tr.")) 15. The Government responded, "I don't have available to me today any particular specific analysis as to what the threats of -from a particular individual might be if a particular individual were let loose on the street." Tr. 17. The Government offered no evidence.

The Government had "seven years to study this issue," Tr. 15, three years' notice of these habeas cases, ten weeks' notice of the Release Motion, and six weeks' notice of the hearing date on the motion. The district court never barred or denied any offer of the Government of a return, or indeed any evidence at all. (The court did require detailed proffers concerning the practical arrangements in place for release and resettlement, and as to who would host the men and where. Witnesses were present and ready to testify. The Government accepted the evidence by proffer and declined to challenge or cross-examine. Tr. 43-52.) [5]

[5] The suggestion that he was about to free the men carelessly, Mot. 19 n.7, does a gross disservice to Judge Urbina, omitting pages of context concerning the Government's provocative assertion that the men would be jailed upon arrival by a DHS that needed an additional week to consider its options. Tr. 46-52. Judge Urbina expressly retained the authority to set appropriate conditions when the Appellees arrived at his courtroom on October 10. Ex. I (October 8 release order stating that Judge Urbina intended to address release conditions on October 10).

In a normal habeas proceeding where the government has conceded as much as it has conceded here, a stay pending an appeal would be unlikely.

However, I would not be surprised if a stay (and fast-track appeal schedule) were granted. That would put the matter well beyond Election Day (perhaps into January) and the matter could then become moot depending on the policies of the new administration. Appellate courts are often practical institutions.

jmm99
10-20-2008, 05:20 PM
This development is not that surprising for several reasons (discussed in the articles below). But, first the development.


U.S. wants Hamdan held longer
Sunday, October 19th, 2008 4:01 pm | Lyle Denniston
......
Anticipating an imminent new test of the constitutional right the Supreme Court has recognized for Guantanamo Bay detainees, the Justice Department and Pentagon are seeking to keep a Yemeni national, Salim Ahmed Hamdan, in captivity at Guantanamo Bay long after his war crimes sentence is scheduled to end. .....
....
While the dispute at this stage focuses primarily on military law, the underlying theory on which the government’s new move is based has implications for all detainees still at Guantanamo, including some 80 others who, like Hamdan, have been charged with war crimes.
....
Whatever happens in a military commission case, the motion contended, “the United States would be fully justified to continue to detain someone adjudged to be an enmy combatant in order to prevent his return to the battlefield.” ....

http://www.scotusblog.com/wp/us-wants-hamdan-held-longer/#more-8101

The WSJ article is here.


Wall Street Journal
October 17, 2008
New Sentence Is Sought for Bin Laden's Driver
By Jess Bravin

WASHINGTON -- The Bush administration wants the military jury that sentenced Osama bin Laden's former driver to reconvene for new deliberations that could add five years to his scheduled release date of Dec. 31. ....
.....
Prosecutor John Murphy, a Justice Department attorney, initially said the government accepted the decision and called it "a victory for the system." But on Sept. 24, prosecutors filed a motion asking that the sentence be reconsidered.....
....
The motion contends that the military judge, Navy Capt. Keith Allred, lacked authority to credit Mr. Hamdan for the time he served in pretrial confinement. Without such credit, Mr. Hamdan, who was captured in November 2001, would face an extra five years.

The chief Guantanamo prosecutor, Col. Lawrence Morris, said the government wants to clarify that unlike courts-martial, military commissions cannot credit defendants for time served.

"The length of the sentence is a matter of indifference to us," Col. Morris said. He said that if the jury still wants Mr. Hamdan released on Dec. 31, it could resentence him to however many days remained until then.
.....
Regardless of his criminal sentence, the government maintains it can hold Mr. Hamdan indefinitely as an unlawful enemy combatant. The government has not disclosed its plans for Mr. Hamdan, defense lawyers said.

http://www.scotusblog.com/wp/wp-content/uploads/2008/10/bravin-story-wsj.doc

The government's motion (7 pp.) is here

http://www.scotusblog.com/wp/wp-content/uploads/2008/10/us-motion-re-hamdan-sentence-9-24-08.pdf

Hamdan's response (18 pp.) is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/10/hamdan-opp-re-new-sentence.pdf

The government's reply (8 pp.) is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/10/us-reply-re-hamdan-sentence-10-16-08.pdf

Normally in criminal cases (Federal, state and UCMJ), the convicted defendant is granted credit for time served. One issue is whether the MCA process allows that explicitly or implicitly. Another issue is whether, if the MCA process does not allow that, the government waived that alleged error by not objecting to Judge Allred's instruction to that effect.

As to this motion, I am not going to go into detail on the merits, leaving them up to Judge Allred who has (IMO) done a good job with this first MCA trial. Even if the motion were granted, the jury panel could re-affirm its prior result by imposing a lesser sentence - as Col. Morris correctly pointed out in the WSJ article.

The real dispute will arise when Hamdan's sentence is completed (let us assume 31 Dec 2008). Will he then be eligible for release from Gitmo. The government says "no".

At that point, the case will resemble (but is not the same) as the present Uighur cases before Judge Urbina and the DC circuit. The key factual distinction (possibly critical legally) is this:


1. Hamdan has been determined to be an "enemy combatant" guilty of "war crimes" (as we are somewhat loosely using that term here - "MCA crimes" seem more technically correct).

2. The Uighurs have been determined not to be "enemy combatants" and have not been charged with "war crimes" (as used here).

So far as Hamdan is concerned, his release from Gitmo (if it ever occurs) will be under a new administration (whoever is elected). Hence, the present motion in Hamdan may just be marking time.

Resolving the issues now presented in Hamdan are relevant to some 80 pending Gitmo trials. Of course, a new administration might change the Gitmo policies - so, a "wait and see" attitude seems reasonable.

jmm99
10-21-2008, 05:07 PM
as predicted - so, no surprise on this discussion board.


Transfer of detainees to U.S. blocked
Monday, October 20th, 2008 10:47 pm | Lyle Denniston
.....
In a split decision, the D.C. Circuit Court on Monday evening barred — until at least late November — the transfer of 17 Guantanamo Bay detainees to the U.S., where they were to be released. A three-judge panel, with one dissent, granted the request of the Justice Department and Pentagon to postpone any transfer while the panel considers a group of government appeals arguing that the courts have no power to require detainees to be brought into the U.S......
http://www.scotusblog.com/wp/transfer-of-detainees-to-us-blocked/#more-8111

The court's very brief order (and a 4 page dissent by Judge Rogers) is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/10/kiyemba-order-10-20-08.pdf

The majority's opinion is a one liner (without further explanation of why the government's motion met each of the "sringent standards"):


(order p.1)
Appellants have satisfied the stringent standards required for a stay pending appeal.

The briefing schedule is as follows:


(order p.2)
Appellants’ Brief - October 24, 2008 (not to exceed 14,000 words)
Appendix - October 24, 2008
Appellees’ Joint Brief - October 31, 2008 (not to exceed 14,000 words)
Reply Brief - November 7, 2008 (not to exceed 7,000 words)

The parties are directed to file and serve their briefs by hand. This panel will hear oral argument in these consolidated cases on November 24, 2008, at 9:30 a.m.

A 14,000 word brief is medium weight. I went back to a brief I filed in 2006 in support of a summary disposition motion, which had 2500+ words in 7 pages - the exhibits filed with it (corresponding to an Appendix in an appellate court) were several inches thick. So, 14,000 words would = roughly 40 pages.

Judge Rogers' opinion correctly sets out the standards used generally in the Federal courts for staying the release (pending appeal) of prisoners granted habeas relief. Those standards are:


(pp.4-6)
Rule 23(c) of the Federal Rules of Appellate Procedure provides that: While a decision ordering the release of a prisoner is under review, the prisoner must — unless the court or judge rendering the decision, or the court of appeals, or the Supreme Court . . . orders otherwise — be released on personal recognizance, with or without surety.

FED. R. APP. P. 23(c). Under Hilton v. Braunskill, the presumption of release pending appeal of a habeas grant is subject to consideration by the appellate court of the four factors traditionally considered in deciding whether to grant a stay. 481 U.S. 770, 777 (1987). Those four factors also weigh against a stay here.

First, as regards the likelihood of success on the merits, ....
.....
Under the second factor, the government fails to establish irreparable harm.....
....
Under the third factor, the petitioners clearly have a substantial interest in release, for the interest in release is “always substantial.” ...
....
Finally, as regards the public interest, the fourth factor, ....

I've not quoted Judge Rogers' discussion of the four factors (you can read her statement), since the majority (JJ. Henderson and Randolph) did not discuss their reasoning as to how the standards had been met.

As stated before, this case will now proceed to a hearing after the election, with a decision during the Holiday season - and an appeal to SCOTUS after that. By that time, the policies of the new administration toward Gitmo will be more clear - and we shall go from there (wherever "there" is).

jmm99
10-22-2008, 03:09 AM
that is, that the entire DC Circuit (10 eligible judges) rehear the issues decided by the order (2-1) issued by the 3-judge panel last nite.


Uighurs seek en banc review
Tuesday, October 21st, 2008 4:13 pm | Lyle Denniston
.......
Saying they fear at least another year in confinement for Guantanamo Bay detainees who are no longer being treated as enemies, lawyers for 17 Chinese Muslim prisoners asked the D.C. Circuit Court on Tuesday to move rapidly before the full ten-judge Court to review the detainees’ plea for release into the U.S.

The petition for en banc rehearing asked the Circuit Court to lift a ban on the detainees’ release that was issued Monday by a three-judge Circuit panel. But, in addition, the petition suggested the en banc Court move ahead with review on the merits without waiting for further action before the panel. .....

http://www.scotusblog.com/wp/uighurs-seek-en-banc-review/

----------------------------------------
This case is becoming a good outline of what "moves" are available to litigants before the Federal Courts of Appeal. Here are the steps so far (## 1 & 2 are common; the remainder are less common):


1. Habeas order for release entered by DC District judge Urbina.

2. Notice of Appeal filed with DC Circuit.

3. Motion for Stay Pending Appeal filed with DC Circuit.

4. Emergency Motion for Stay Pending Determination of Motion (# 3) filed with DC Circuit.

5. Emergency Motion (# 4) granted by 3-judge panel.

6. Motion for Stay (# 3) granted by 3-judge panel (with expidited appellate schedule).

7. Petition for Rehearing En Banc of Motions for Stays (## 3 & 4) filed with DC Circuit.

After step # 6, the detainees had three options (not necessarily exclusive of each other): (1) petition for rehearing before the 3-judge panel; (2) petition for rehearing before the DC Circuit en banc; and (3) petition for certiorari to SCOTUS. The most favorable option (not that favorable) of the three is the en banc petition.

28 USC 46(c) provides for hearing and rehearing by a 3-judge panel unless hearing or rehearing en banc is allowed by majority vote of the circuit's judges eligible to vote on the en banc petition. The statute, and the notes to FRAP Rule 35, can be found here (http://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00000046----000-.html) and here (http://www.law.cornell.edu/rules/frap/nrule35.html).

FRAP Rule 35(a) spells out the basic requirements controlling en banc hearings and rehearings.


Rule 35. En Banc Determination

(a) When Hearing or Rehearing En Banc May Be Ordered.

A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:

(1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or

(2) the proceeding involves a question of exceptional importance

http://www.law.cornell.edu/rules/frap/rules.html#Rule35

Since en banc review is expressly disfavored (but so are stays in habeas cases), the detainees' problem will be convincing a majority of the judges eligible to participate (6 out of 10) to vote in favor of the petition.

-------------------------------------
The practical differences between requesting a rehearing before the original 3-judge panel and a rehearing en banc can be found here in down to earth language.


Beldar Blog
Wednesday, December 27, 2006
Federal appellate panel rehearing vs. rehearing en banc
....
... the tone of a motion for panel rehearing may be very solicitous, along the lines of, "Gosh, Your Honors, we're sorry, we just didn't know you would be interested in Issue X-and-such, but now that we know that, here's our position on that, and here's why you ought to want to grant panel rehearing to fix this problem in your original panel opinion (and by the way, here's why that means we win instead of we lose)."

The underlying tone and subtext of a motion for rehearing en banc, however, is typically much more adversarial, along the lines of "Hey Fifth Circuit! Three of your colleagues just screwed the pooch very badly, so you need to unscrew it before we ask the Supremes to do so, 'cause they and the other Circuits are going to be pointing the finger at your Circuit and snickering behind your backs!"

Obviously, this sort of pitch has to be really sub-textual, and cloaked in appropriately respectful language, to have any chance at all of success. But that is the basic and essential pitch: "Y'all need to gang up and overrule three of your colleagues who've botched it." ....

http://beldar.blogs.com/beldarblog/2006/12/federal_appella.html

Keeping all of the above in mind, you can then consider the detainee's petition (10 pp.), which can be found here.

http://www.scotusblog.com/wp/uighurs-seek-en-banc-review/

No new arguments are raised in this petition; but it does emphasize the many problems in judicial administration within the DC Circuit created by the habeas cases. That is an invitation, of course, for the entire court to adopt uniform "ROEs" for managing these cases.

If that invitation appeals to 6 of the 10 judges, the petition might be granted. On the other hand, if 6 of the 10 would as soon adopt a "wait and see" attitude, the petition would be denied. This petition seems something of a "Hail Mary", but sometimes those plays work.

-------------------------------------------
A footnote to the Uighurs' petition is a Motion for Conditional Order of Contempt against Robert Gates filed in the DC Circuit in the separate Parhat case. This motion has been known since last Thursday, but was made public today after review for classified information was completed.

http://www.scotusblog.com/wp/wp-content/uploads/2008/10/Parhat-contempt-motion-10-16-2008.pdf

It pertains to the DC Circuit's order of 20 Jun 2008, which became final on 12 Sep 2008 and which ordered Parhat to be released or transferred.

That motion is not controlled by the appeal of Judge Urbina's habeas order, since it was entered in the DC Circuit's review of his DTA determination. The motion therefore ties in with the very complex Bismullah discovery litigation; and the DoJ's request that all DTA proceedings before the DC Circuit be abandoned. That litigation is also still pending.

A declaration (not earth-shaking) by one of the detainee's attorneys about Gitmo conditions for the Uighurs is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/10/Dixon-declaration-10-16-2008.pdf

jmm99
10-22-2008, 07:55 PM
As we move closer to election day, it is becoming more and more obvious that no binding decisions will be made until the new administration confronts the pending cases and the continued use of Gitmo to house the detaineees.

So, moving away from the legal issues for one post, here are some recent commentaries from the political side.

This NY Times article generated some heat (which one can find easily by Googling). The portions I found relevant to future legal developments were the positions (or rather, the non-positions) of the two major candidates:


NY Times
Bush Decides to Keep Guantánamo Open
......
By STEVEN LEE MYERS
Published: October 20, 2008

WASHINGTON — Despite his stated desire to close the American prison at Guantánamo Bay, Cuba, President Bush has decided not to do so, and never considered proposals drafted in the State Department and the Pentagon that outlined options for transferring the detainees elsewhere, according to senior administration officials.....
.....
Both presidential candidates, Senators John McCain and Barack Obama, have called for closing Guantánamo and could reverse Mr. Bush’s policy, though probably not quickly since neither has spelled out precisely how to deal with some of the thorniest legal consequences of shutting the prison.
.....
Mr. McCain has suggested moving the detainees to Fort Leavenworth, Kan., home of the Army’s prison. His remarks prompted a letter in June from the two Republican senators from Kansas, Sam Brownback and Pat Roberts, objecting to the idea on a variety of grounds.

Mr. McCain’s campaign did not respond to requests for comments about Guantánamo. The Obama campaign declined to comment specifically, but in his platform, Mr. Obama promises to abolish military tribunals and conduct a review to determine which prisoners to prosecute, which to hold under the laws of war and which to release. His proposal does not specify where detainees would be held.

Other sites that have been mentioned include the United States Naval Consolidated Brig in Charleston, S.C., and the United States Penitentiary Administrative Maximum Facility, known as supermax, in Florence, Colo. ....

http://www.nytimes.com/2008/10/21/washington/21gitmo.html?_r=2&partner=rssnyt&emc=rss&oref=slogin&oref=slogin

While the candidates avoid spelling out a precise plan, the present administration continues to blow hot and cold in individual cases. So, from yesterday, we find a set of dismissals - non-dismissals:


US drops charges against 5 Guantanamo prisoners
US drops charges against 5 at Guantanamo after prosecutor complains about withheld evidence
ANDREW O. SELSKY
AP News
Oct 21, 2008 17:20 EST

The U.S. military abruptly dropped charges against five Guantanamo Bay detainees, including one who allegedly plotted to detonate a "dirty bomb" in the U.S., after a prosecutor charged the military was suppressing evidence that could have helped clear them.

But despite the decision, announced Tuesday, there are no plans to free the men. New trial teams are taking another look at the evidence, the military said, and after consulting with intelligence agencies will recommend whether to reinstate charges.

That means the administration of the next U.S. president will probably get to decide what to do with the cases, including that of Binyam Mohamed, accused of plotting with U.S. citizen Jose Padilla to set off a radioactive bomb and fill apartments with natural gas to blow up buildings.
.....
In addition to Mohamed, the military dropped charges against Ghassan Abdullah al Sharbi, a U.S.-educated Saudi who allegedly plotted to bomb U.S. troops in Afghanistan; Jabran Said Bin al Qahtani, a Saudi charged with helping al-Qaida make bombs in Pakistan; and Sufyiam Barhoumi of Algeria and Noor Uthman Muhammed of Sudan who allegedly trained al-Qaida recruits in Afghanistan.
http://wiredispatch.com/news/?id=427064

Googling "how to close guantanamo" gets over 11,000 hits. Here are two plans that seem closer to the Obama position than the McCain position.

http://www.humanrightsfirst.org/pdf/080818-USLS-gitmo-blueprint.pdf

http://www.americanprogress.org/issues/2008/06/pdf/guantanamo.pdf

What is interesting about these plans is that both project a time frame of 1-2 years (from now) - not to complete the process of trying detainees, but to get to the point of trying them (either in Federal courts or in military courts under the UCMJ, since the MCA courts would be abolished).

What seems totally nutty (IMO) is that we are now 7 years out from 9/11. We have yet to bring its major figures to trial for that war crime - even though we have had them (I speak of KSM and his companions) in custody for most of that time.

jmm99
10-23-2008, 03:25 AM
That definition is key to both the DTA and MCA processes, as well as the habeas cases.

So far, two cases (Parhat & Hamdan) have dealt with the question based on the specific evidence, or lack thereof, presented in each case.

Hamdan was found an "unlawful enemy combatant" by Judge Allred in Dec 2007 (based on a de novo evidentiary hearing, after he rejected the CSRT determination).

But, in Parhat, the DC Circuit panel found that the CSRT evidence against Parhat was insufficient to establish that he was an "enemy combatant" at all (lawful or unlawful).

The evidence did suggest that Parhat might be considered a potential combatant against China - 50 years ago, he and the other Uighurs would have been prime recruits for US covert action operations in mainland China. Times do change.

Time is running against Judge Leon's determination that he will complete trials in all 24 of his habeas cases before year's end. To eliminate duplicative hearings, he ordered the parties to brief the definition of "enemy combatant" to be used in all 24 cases. He will decide that after a hearing tomorrow.


An inquiry into “enemy” status
Wednesday, October 22nd, 2008 4:34 pm | Lyle Denniston
.....
In a hearing that could have major consequences for the government’s entire program of indefinitely detaining terrorism suspects, U.S. District Judge Richard J. Leon on Thursday confronts the outwardly simple issue of who qualifies as an enemy — specifically, an “enemy combatant.” Only if a prisoner is so designated can the government continue to keep that individual in prolonged custody. Absent such a designation, in other words, a detainee must be released. ....

http://www.scotusblog.com/wp/an-inquiry-into-enemy-status/#more-8119

Given the situation in the Uighur cases (who clearly are not "enemy combatants"), Lyle is being a bit optimistic with his conclusion - "Absent such a designation, in other words, a detainee must be released."

In any event, the detainees' proposed definition (23 pp.) is here.


(p.21)
CONCLUSION
The Court should employ the definition of “enemy combatant” established under longstanding law-of-war principles, namely to include: (1) a member of a State military that is engaged in an armed conflict against the United States, or (2) a civilian directly participating in hostilities as part of an organized armed force in an armed conflict against the United States. Only such people are on the “battlefield” and may be legitimately “removed” from it by use of military force. For the reasons stated in Petitioners’ Traverse, the Government has failed to show that Petitioners fall into either category; indeed, it has not even alleged that they do. The writ of habeas corpus should be granted.

http://www.scotusblog.com/wp/wp-content/uploads/2008/10/boumediene-brief-on-encom-isu-10-20-08.pdf

The DoJ's definition (21 pp.) is here.


(p.5)
An enemy combatant is an individual who was part of or supporting forces engaged in hostilities against the United States or its coalition partners. This includes an individual who was part of or supporting Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners. This also includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

http://www.scotusblog.com/wp/wp-content/uploads/2008/10/govt-memo-on-encom-10-22-08.pdf

All readers here will instantly recognize that we are dealing with a dichotomy between conventional warfare (the detainees' definition) and unconventional warfare (the DoJ's definition). That the two sets of lawyers are living in parallel universes is apparent when you read through the briefs. The "battlefield" in one universe is clearly different from the "battlefield" in the other.

My guess is that most here at SWC would be inclined to the DoJ's definition.

Here is your chance to beat Judge Leon to the punch.

Comments ?

jmm99
10-25-2008, 01:53 AM
both at Gitmo and in the DC Circuit. The Hail Mary play did not work; and the game will now go into the first period of overtime - with more than one period expected.


En banc denied in Uighurs’ case
Friday, October 24th, 2008 3:43 pm | Lyle Denniston
.....
Over two judges’ dissents, the en banc D.C. Circuit Court refused on Friday to review a three-judge panel’s order postponing until at least late November any transfer of 17 Guantanamo Bay detainees to the U.S. ....

The order is brief, without an opinion.

http://www.scotusblog.com/wp/wp-content/uploads/2008/10/kiyemba-order-10-24-08.pdf

Judges Rogers and Brown voted to grant the petition for rehearing en banc. Judge Rogers was the dissent in the 2-1 decision of the DC Circuit panel order being appealed. Judge Brown has voted for en banc consideration of the Uighurs before (in Bismullah III), reasoning that the DC Circuit en banc should take a definitive position in these cases.

--------------------------------------


(from same SCOTUSblog)
UPDATED 4:40 p.m. with filing of new U.S. brief (see below)
.....
The Justice Department on Friday afternoon filed a 52-page merits brief. arguing that its agreement not to send the 17 Uighurs back to China, where they fear torture or death, did not bar it “from exercising its sovereign power” to deny them entry into the U.S. mainland. The detainees, it said, have no right under federal laws or under the Constitution to enter the U.S. over the objection of the Executive Branch.
....
Notably, however, the new brief does not repeat assertions made in prior filings in the case that the 17 Uighurs themselves are dangerous, and that they pose a distinct threat to national security because they previously had weapons training. Strong statements in prior court documents to that effect reportedly have brought protests from State Department diplomats, who contended that such claims had made it more difficult to get any country other than China to accept them as settlers.

The only allusion to the prior claims that the individuals were personally threatening to the U.S. was a rejection of Judge Urbina’s conclusion that the government by those earlier accusations had undermined diplomatic efforts to resettle the 17.

The detainees’ merits brief is due next Friday.

The DoJ's brief is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/10/kiyemba-us-brief-10-24-08.pdf

Previously, we have noted that this case, which began as a DTA "unlawful enemy combatant" matter, has progressed more and more into a very unique immigration case. The DoJ brief has now very nearly completed that morphing. The Uighurs as threats to our security (national or personal) appear to have gone by the boards.

Based on the present factual record (which is incomplete since the merit hearings ordered by Judge Urbina have been stayed), the DC Circuit has limited options. One is to simply order the Uighurs held at Gitmo indefinitely. Another would be to remand to Judge Urbina to complete the merit hearings on the terms of custody and release. A third, I suppose, would be to remand the Uighurs to DHS custody for treatment as undocumented aliens.

The Uighurs' attorneys will file next Friday - so, a week without Uighurs - but wait, the Bismullah DTA appeal involving the same Uighurs is also coming on deck !

jmm99
10-25-2008, 03:03 AM
It's easy here to get lost among the trees without a map of the forest. Here is a map, whose table of contents points to most of the issues discussed in this thread.


CRS Report for Congress
Order Code RL33180
Enemy Combatant Detainees:
Habeas Corpus Challenges in Federal Court
Updated September 10, 2008
Jennifer K. Elsea, Michael John Garcia, and Kenneth R. Thomas
Legislative Attorneys
American Law Division
.....
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Rasul v. Bush . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . 4
Combatant Status Review Tribunals . . . . . . . . . . . . . . . . . . . . 6
Court Challenges to the Detention Policy . . . . . . . . . . . . . . . . . 8
Khalid v. Bush . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
In re Guantanamo Detainee Cases . . . . . . . . . . . . . . . . . . . . . 11
Hamdan v. Rumsfeld . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Presidential Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
The Geneva Conventions and the Law of War . . . . . . . . . . . . . . 14
Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Al-Marri . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Detainee Treatment Act of 2005 (DTA) . . . . . . . . . . . . . . . . .. . 21
The Military Commissions Act of 2006 (MCA) . . . . . . . . . . . . . . . 23
Provisions Affecting Court Jurisdiction . . . . . . . . . . . .. . . . . . . . 23
Provisions Regarding the Geneva Conventions . . . . . . . . . . . . . . 25
Post-MCA Issues and Developments . . . . . . . . . . . . . . . . . . . . 27
Possible Application to U.S. Citizens . . . . . . . . . . . . . . . . . . . . . 28
DTA Challenges to Detention . . . . . . . . . . . . . . . . . . . . . .. . . . 29
Bismullah v. Gates . . . . . . . . . . . . . . . . . . . . . . . .. . . . ... . . . 29
Parhat v. Gates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 31
Boumediene v. Bush . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Constitutional Considerations and Options for Congress . . . . . . . . 40
Scope of Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 43
The Fact and Length of Detention . . . . . . . . . . . . . . . .... . . . . . 44
Conditions of Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Available Remedy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Extraterritorial Scope of Constitutional Writ of Habeas . . . . . . . . . 48
Use of Habeas Proceeding to Challenge the Jurisdiction
of a Military Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Congressional Authority over Federal Courts . . . . . . . . . . . . . . . . 49
Separation of Powers Issues . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Legislative Action in the 110th Congress . . . . . . . . . . . . . . . . . . 53
National Defense Authorization Provisions . . . . . . . . . . . . . . . . . . 53
Habeas Corpus Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Bills to Regulate Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

http://www.fas.org/sgp/crs/natsec/RL33180.pdf

The conclusion points to the future role of Congress in this process. That exact role will depend on the policies of the next administration; but here is the general roadmap:


(p.61 in .pdf)
CRS-58
Conclusion

The Administration’s policy of detaining wartime captives and suspected terrorists at the Guantanamo Bay Naval Station has raised a host of novel legal questions regarding, among other matters, the relative powers of the President and Congress to fight terrorism, as well as the power of the courts to review the actions of the political branches. The DTA was Congress’s first effort to impose limits on the President’s conduct of the Global War on Terrorism and to prescribe a limited role for the courts. The Supreme Court’s decision striking the DTA provision that attempted to eliminate the courts’ habeas jurisdiction may be seen as an indication that the Court will continue to play a role in determining the ultimate fate of the detainees at Guantanamo. However, the Court did not foreclose all options available to Congress to streamline habeas proceedings involving detainees at Guantanamo or elsewhere in connection with terrorism. Instead, it indicated that the permissibility of such measures will be weighed in the context of relevant circumstances and exigencies.

As a general matter, the courts have not accepted the view that the President has inherent constitutional authority to detain those he suspects may be involved in international terrorism. Rather, the courts have looked to the language of the AUMF and other legislation to determine the contours of presidential power. The Supreme Court has interpreted the AUMF with the assumption that Congress intended for the President to pursue the conflict in accordance with traditional law-of-war principles, and has upheld the detention of a “narrow category” of persons who fit the traditional definition of “enemy combatant” under the law of war. Other courts have been willing to accept a broader definition of “enemy combatant” to permit the detention of individuals who were not captured in circumstances suggesting their direct participation in hostilities against the United States, but a plurality of the Supreme Court warned that a novel interpretation of the scope of the law of war might cause their understanding of permissible executive action to unravel.

Consequently, Congress may be called upon to consider legislation to support the full range of authority asserted by the executive branch in connection with the GWOT. In the event the Court finds that the detentions in question are fully supported by statutory authorization, whether on the basis of existing law or new enactments, the key issue is likely to be whether the detentions comport with due process of law under the Constitution.

Emphasis added by JMM.

jmm99
10-28-2008, 04:15 AM
Defining a wartime “enemy”
Monday, October 27th, 2008 2:13 pm | Lyle Denniston
.....
In an eight-minute hearing, the judge [Richard J. Leon] said he had settled on this definition:

“ ‘Enemy combatant’ shall mean an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed [a] belligerent act or has directly supported hostilities in aid of enemy combat forces.”

That is the formulation the Pentagon put into effect on July 7, 2004, to guide the detention decisions to be made by “Combatant Status Review Tribunals.” .....
.....
... the judge’s version omitted the broader language that opened the government’s proposal: “An enemy combatant is an individual who was part of or supporting forces engaged in hostilities against the United States or its coalition partners.”

http://www.scotusblog.com/wp/defining-a-wartime-enemy/#more-8151

You might be surprised; but this is the first time that a Federal judge has required the parties to brief this very basic issue - and then has decided on a definition.

Hat tip to Judge Leon, whose written opinion (4 pp.) is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/10/boumediene-order-10-27-08.pdf

This does NOT mean automatic affirmance of CSRT determinations - as Judge Leon points out (p.2), each case will present mixed questions of law and fact - where his definition of "enemy combatant" will be the law part. We need look no further than the Parhat case and the rest of the Uighurs to see that CSRT determinations may be fatally flawed factually.

The battle in Judge Leon's court should now move to the evidence supporting the CSRT determination for each detainee in light of Judge Leon's definition - and to the existence of any exculpatory evidence that might prove that the detainee was not an "enemy combatant" under that definition. As to the latter point, the DoJ has been very reluctant to provide discovery of possible exculpatory evidence. We shall see how Judge Leon - and the other DC District and Circuit judges - approach that issue.

There is a little "wiggle room" in Judge Leon's definition. The first sentence uses "supporting"; the second sentence uses "directly supported". The question is whether "indirect support" is covered (possible given first sentence) or not (clearly excluded under the second sentence). I expect that will be clarified before the merits hearings begin.

Schmedlap
10-29-2008, 02:07 AM
Thanks for keeping this thread up-to-date. We're doing Hamdi v. Rumsfeld and Hamdan v. Rumsfeld in class tomorrow.

jmm99
10-29-2008, 02:45 AM
would only be overload at this point in time. So, KISS - listen to what is said & listen to what is said. You already know what you want to say. Look for the seam (open door) to walk through - hopefully, on a path to an artery. Say a prayer to St. George.

Do a quick skim through the CRS Report for Congress in post # 113. It's pretty much middle of the road - maybe a slight liberal slant.

Let me know what Mr. Prof.'s take on those cases is.

Schmedlap
10-29-2008, 03:40 AM
You already know what you want to say.

Actually, I don't. This is first year, first semester, basic Constitutional Law and I'm here to learn - not to try to change the opinion of a professor whose mind is made up. I'm learning as I go and, to my surprise, I agree with the majority opinion in Hamdi, simply because he was a US citizen and, for whatever reason, the gov't saw fit to bring him back to the US.

jmm99
10-29-2008, 05:59 PM
See PM.

jmm99
10-29-2008, 08:57 PM
Ali Hamza al-Bahlul is a Yemeni who was involved in AQ's agitprop department. His MCA trial is now in progress. This is an odd case because Ali Hamza is part of the "Boycott Gitmo Trials Movement" - in short, he is requiring his military defense counsel not to put on a defense.

Here are some background items on the case, starting with the CSRT findings:


A Summary of Evidence memo was prepared for the tribunal, listing the alleged facts that led to his detainment. His memo accused him of the following:[11]

a. Detainee is a member of al Qaida and associated with the Taliban.

Detainee admits being a member of al Qaida and swearing an oath of allegiance to Usama Bin Laden.

Detainee traveled to Afghanistan in 1999 to aid the Taliban in their struggle against the Northern
Alliance. The detainee stayed at several Taliban guesthouses in Pakistan while in transit to Afghanistan.

Detainee trained at a military training clinic in Afghanistan for five weeks. He received basic tactics and navigation training and instruction in the use of Russian weapons, light and heavy machine guns, and 75mm and 82mm Howitzers. Detainee also attended two months of advanced training at an al Qaida training camp.

Usama Bin Laden appointed detainee as his media office director and public relations secretary.

Detainee was responsible for producing all al-Qaida propaganda, including the video commemorating the USS Cole attack. In his capacity as public relations secretary, detainee regularly escorted Usama Bin Laden and often provided computer assistance to the Taliban. When with Bin Laden, the detainee carried a Kalashnikov rifle, two loaded magazines, a Makarov pistol, and a suicide belt equipped with explosives to protect Bin Laden.

Detainee was a roommate with two of the 9/11 hijackers while living in an al Qaida facility in Kandahar.

Detainee stated that he would kill Americans at the first opportunity upon his release from prison.

Detainee evacuated Kandahar with Usama Bin Laden several days before the 9/11 attacks. Detainee was tasked with establishing a video feed in order for Bin Laden to watch the 9/11 attacks.

b. Detainee engaged in hostilities against the United States.

Detainee engaged in combat on the front lines in Kabul from 1999 to 2001. While on the front lines, the detainee witnessed a speech by Usama Bin Laden praising the USS Cole bombing.

[11] OARDEC (7 September 2004). "Summary of Evidence for Combatant Status Review Tribunal -" pages 42-43. United States Department of Defense.

http://en.wikipedia.org/wiki/Ali_Hamza_Ahmed_Suleiman_Al_Bahlul

After some delay because of the intervening SCOTUS cases, he was re-charged under the MCA, together with Hamdan, in Feb 2008, as outlined in this Reuters article:


US military charges two more Guantanamo captives
Fri Feb 8, 2008 6:55pm EST
By Jane Sutton

GUANTANAMO BAY U.S. NAVAL BASE, Cuba, Feb 8 (Reuters) - U.S. military prosecutors filed war crimes charges against two more Guantanamo prisoners on Friday, saying one was an al Qaeda videographer and the other one a driver and bodyguard for Osama bin Laden.

That brings to seven the number of captives charged in the revised system of military tribunals created to try non-U.S. citizens held at the U.S. Navy base in southeast Cuba as part of the Bush administration's war against terrorism.

The charges say that Ali Hamza Ahmad Suliman al Bahlul, a 39-year-old Yemeni, was bin Laden's personal media secretary and occasional bodyguard, who created a recruiting video glorifying the bombing of the USS Cole.

Seventeen U.S. sailors were killed when al Qaeda militants attacked the ship as it was docked in Yemen in 2000.

Prosecutors also say al Bahlul made martyrdom videotapes styled as wills for two of the Sept. 11 hijackers and helped research the economic impact of the attacks they launched against the United States.......

http://www.reuters.com/article/latestCrisis/idUSN08524780

The trial is currently before a 9-person MCA jury panel, who are looking at the video evidence.


Guantanamo Yemeni claims "al Qaeda's best video"
Wed Oct 29, 2008 2:06pm EDT
By Jane Sutton

GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) - A Yemeni prisoner watched an al Qaeda recruiting video with his Guantanamo interrogator and proudly admitted producing the work, the interrogator testified in the U.S. war crimes court on Wednesday.

"He considered it one of the best propaganda videos al Qaeda has to date," former FBI special agent Ali Soufan testified in the U.S. war crimes trial of defendant Ali Hamza al Bahlul.

Osama bin Laden was so impressed with the video that he promoted Bahlul to become his media secretary, the FBI agent quoted Bahlul as telling him.

Bahlul is on trial at the U.S. naval base in Guantanamo Bay, Cuba, on charges of conspiring with al Qaeda to commit murderous attacks, soliciting to commit murder and providing material support for terrorism. He faces life in prison if convicted. ...
....
Bahlul sat at the defense table beaming with pride during some segments and nodding in agreement at the bin Laden portions. He pounded his fist on the table once at the mention of the defilement of Muslim women.

Soufan testified that Bahlul had told him, "Everything I believe is in that tape."

Bahlul, a slightly built man with a short, dark beard, was denied permission to act as his own attorney. His U.S. military lawyer is honoring his request not to put on any defense in the tribunal that Bahlul previously called "a farce." ......

http://www.reuters.com/article/domesticNews/idUSTRE49R5OZ20081029?sp=true

Almost got past my radar screen - SCOTUSblog, for some reason, has not picked up on this one.

jmm99
10-30-2008, 07:01 PM
McClatchy and the Guardian give us some background on the participants in Ali Hamza's ongoing trial. All quotes are from:


Alleged al-Qaida video maker's trial opens at Guantánamo Bay
Six of the jurors deliberated the sentence of David Hicks
Ali Hamza al-Bahlul refusing services of court attorney
McClatchy newspapers guardian.co.uk,
Tuesday October 28 2008 16.10 GMT

http://www.guardian.co.uk/world/2008/oct/28/guantanamo-usa-ali-hamza-al-bahlul

The judge, AF COL Ronald Gregory, normally tries cases involving AF personnel; e.g., two such case are here (http://afcca.law.af.mil/content/afcca_opinions/cp/mcmillion-36516.u.pdf) and here (http://afcca.law.af.mil/content/afcca_opinions/cp/minor-s30801.u.pdf). In this case, the usual advice to the trial jury (that the defendant is not required to make any defense) has real meaning.


The judge, an air force colonel, Ronald Gregory, told the jury of US military colonels and navy captains that the burden is entirely on the prosecution to prove guilt. As in all trials, he said, the accused need not offer a defense.

The strategy may prove a challenge to the typically talkative al-Bahlul. Across years of pre-trial hearings, he has delivered hourlong monologues in which he declared his devotion to bin Laden and rejection of the US military's authority to judge him.

"I will never deny any actions I did alongside bin Laden fighting you and your allies, the Jews," al-Bahlul said at his May arraignment. "We will continue our jihad and nothing will stop us."

Gregory ruled before the jury was selected that al-Bahlul's boasts in the war-court chamber would be excluded from the trial.

The jury is also experienced. Some sat in on the David Hicks trial (conviction and 8 year sentence, which was a virtual nullity because pre-verdict a deal was made between the US and Aussie governments). The Gitmo jury panels are set up on a rotating basis, as explained in the article:


In a surprise, six of the jurors, including the foreman, had previously deliberated the sentence of another military commissions convict, Australian David Hicks. Hicks is the former kangaroo skinner turned al-Qaida foot soldier who pleaded guilty to a terror charge in exchange for speedy release.
.....
All the jurors' names were shielded from the public by court order. They included three army colonels, three navy captains, two Air Force colonels and a marine colonel with pilot's wings plainly visible on his uniform.
....
A representative of the clerk of court's office, who was brought to answer reporters' questions on condition she not be identified, said the war court has four rotating panels.

They were compiled from a pool of fewer than 100 pre-approved US military officers from all four services - and will be repeatedly called back to Guantánamo for the terror trials. With predictions that the Pentagon might prosecute up to 80 of the 255 detainees here, that means the same jurors might hear up to 20 cases - like a grand jury in civilian life.

The defense counsel, AF MAJ David Frakt, will have the most difficult job that a trial lawyer can ever undertake - to sit in the courtroom and keep his mouth shut.


This time there will be no defense.

"It goes against all of my training and instincts," said Air Force Reserve Major David Frakt, al-Bahlul's Pentagon-appointed attorney.

Frakt, a law professor in civilian life, said he obtained an opinion from his New Jersey Bar that permits him to follow his client's wishes.

Yesterday, he shook his head, indicating no, each time the judge called on him.

"Mr al Bahlul says we are spectators at a soap opera," he later said, explaining the Yemeni's reason for the boycott. He rejects the military commissions, he said, does not believe his activities were war crimes and respects only Islamic law.

He (Hamza) "respects only Islamic law". I repeat that quote because it ties in with the "Defending Hamdan" thread in this forum - and the issue of whether the Taliban and AQ ever accepted and applied the GCs in Afghanistan.

Thus, my four questions centered on whether common Art. 2 of the GCs was met by the Taliban and AQ armed forces (see post # 33 here (http://council.smallwarsjournal.com/showthread.php?t=6118&page=2) for more explanation).


Did the Taliban state, at any time, that it was bound by the provisions of the GCs, including common Article III ? If so, provide text of statement, date, source, etc.

Did the Taliban abide by the provisions of the GCs in their armed conflicts with the Northern Alliance, US and allied forces ? If so, make your case - prove it

Did AQ-Ansar state, at any time, that it was bound by the provisions of the GCs, including common Article III ? If so, provide text of statement, date, source, etc.

Did AQ-Ansar abide by the provisions of the GCs in their armed conflicts with the Northern Alliance, US and allied forces ? If so, make your case - prove it

Mr. Hamza's rejection of all but Islamic law (as interpreted by AQ) is just another bit of evidence showing that acceptance and application of the GCs by them was nil. That is proved much more fully by the pre- and post-9/11 actions by both the Taliban and AQ in Afghanistan, which clearly did not accord with the GCs.

----------------------------------------
The prosecution will move forward with evidence from 3 of the Lackawanna Six.


Washington Times
3 from NY terror case to testify at Gitmo trial
DAVID MCFADDEN ASSOCIATED PRESS
Originally published 09:56 a.m., October 30, 2008, updated 09:23 a.m., October 30, 2008

GUANTANAMO BAY NAVAL BASE, CUBA (AP) - Three men convicted in an upstate New York terrorism case were expected to testify Thursday in the war-crimes trial of a Guantanamo prisoner accused of producing propaganda for Osama bin Laden, military officials said.

Three of the so-called "Lackawanna Six" were transferred from an Indiana prison to the U.S. Navy base in Cuba to testify for the prosecution in the trial of Ali Hamza al-Bahlul, said Air Force Col. Ronald Gregory, the judge in the second Guantanamo war-crimes trial.

The three men _ Yahya Goba, Yasein Taher and Sahim Alwan _ pleaded guilty in 2003 to providing material support to a terrorist organization. ...
http://washingtontimes.com/news/2008/oct/30/3-from-ny-terror-case-to-testify-at-gitmo-trial/

Presumably, they will testify that they were influenced by Hamza's videos and agitprop.

jmm99
10-30-2008, 07:06 PM
MAJ David Frakt is also defense counsel in the case of Mohammed Jawad, which is also moving toward trial. MAJ Frakt is being allowed by that client to present a defense. The military judge, COL Stephen Henley, flipped a statement made by Jawad, as reported here.


Judge tosses detainee confession citing torture
Gitmo judge tosses out detainee confession obtained through torture by Afghans
DAVID McFADDEN
AP News
Oct 28, 2008 22:38 EST

A U.S. military judge barred the Pentagon Tuesday from using a Guantanamo prisoner's confession to Afghan authorities as trial evidence, saying it was obtained through torture.

Army Col. Stephen Henley said Mohammed Jawad's statements "were obtained by physical intimidation and threats of death which, under the circumstances, constitute torture."

Jawad's defense attorney, Air Force Maj. David Frakt, told The Associated Press that the ruling removes "the lynchpin of the government's case."

Guantanamo's chief prosecutor, Army Col. Lawrence Morris, said he recognized how the judge made his decision and needed to study the ruling before making more comments.

http://wiredispatch.com/news/?id=434824

Judge Henley's choice of language was unfortunate, since now the headlines will go forth as in the article above. The judge would have been better advised to express his opinion in terms of the law as it stands.

As explained in prior posts, the MCA standard for admission (or exclusion) of confessions and other statements by the defendant is based on the "totality of circumstances" surrounding the confession or statement. That was the pre-Miranda test in the Federal and state courts - and there are a multitude of cases illustrating its application to specific facts.

The circumstances surrounding Jawad's statement, based on the article, were.


Jawad, who was still a teenager at the time, is accused of injuring two U.S. soldiers with a grenade in 2002. He allegedly said during his interrogation in Kabul that he hoped the Americans died, and would do it again.

But Henley said Jawad confessed only after police commanders and high-ranking Afghan government officials threatened to kill him and his family — a strategy intended to inflict severe pain that constitutes torture.

"During the interrogation, someone told the accused, 'You will be killed if you do not confess to the grenade attack,' and, 'We will arrest your family and kill them if you do not confess,' or words to that effect," Henley wrote in response to a defense motion to suppress the evidence. "It was a credible threat."

Given those facts, suppression of the statement was a no-brainer under the "totality of circumstances" rule - and those facts also go to the unreliability of the statement itself (the point of the rule). But, torture it was not.

jmm99
10-31-2008, 02:48 AM
Hamdan sentence stays as is
Thursday, October 30th, 2008 3:14 pm | Lyle Denniston
......
Hamdan ... was sentenced to 66 months in military prison, but that was reduced to four months and 22 days because the commission jury gave him credit for 61 months and eight days for part of the time he has been detained by the U.S. military. He is now due to finish his sentence by Dec. 31. ....
.....
Under the Military Commissions Act of 2006, which governs trials such as Hamdan’s, it does not appear that the prosecution may appeal the sentence, including the credit for time in detention. The Act specifies that, after the trial is over, a sentence may not be found to be in error unless the error “materially prejudices the substantial rights of the accused.” ....

http://www.scotusblog.com/wp/hamdan-sentence-stays-as-is/

Judge Allred's very brief order is here

http://www.scotusblog.com/wp/wp-content/uploads/2008/10/hamdan-sentence-order-10-29-08.pdf

The relevant statutory provision mentioned by Lyle is MCA § 950a:


§ 950a. Error of law; lesser included offense

(a) ERROR OF LAW.—A finding or sentence of a military commission under this chapter may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.

The Convening Authority also has limited powers with respect to the sentence under § 950b:


§ 950b. Review by the convening authority

(a) NOTICE TO CONVENING AUTHORITY OF FINDINGS AND SENTENCE.—
The findings and sentence of a military commission under this chapter shall be reported in writing promptly to the convening authority after the announcement of the sentence.
.....
(c) ACTION BY CONVENING AUTHORITY.—

(1) The authority under this subsection to modify the findings and sentence of a military commission under this chapter is a matter of the sole discretion and prerogative of the convening authority.

(2)(A) The convening authority shall take action on the sentence of a military commission under this chapter.
...
(2)(C) In taking action under this paragraph, the convening authority may, in his sole discretion, approve, disapprove, commute, or suspend the sentence in whole or in part. The convening authority may not increase a sentence beyond that which is found by the military commission.

The last clause is similar to § 950a(a), but there is a slight "wiggle room" for the prosecution:


(d) ORDER OF REVISION OR REHEARING.—

(1) Subject to paragraphs (2) and (3), the convening authority of a military commission under this chapter may, in his sole discretion, order a proceeding in revision or a rehearing.
....
‘‘(2)(B) In no case may a proceeding in revision—
....
(iii) increase the severity of the sentence unless the sentence prescribed for the offense is mandatory.

(3) .... A rehearing as to the sentence may be ordered by the convening authority if the convening authority disapproves the sentence.

The argument, I suppose, could be that "credit for time served" is not allowed by the statute; and that Judge Allred, by applying it, was diminishing the mandatory sentence found by the jury. I don't really buy my own suggestion; but the Convening Authority may get involved in this aspect of the case.

One wouldn't think that Hamdan would appeal, but there might be a good reason - the impending habeas case which will become very ripe after December 31 (assuming he is not released). The basic issues in the DC District habeas cases are these:


1. Definition of "enemy combatant" (now just decided by J. Leon - others may differ & SCOTUS will have to decide in the end).

2. Factual record required in habeas proceedings to prove and disprove "enemy combatant" status.

3. Extent of discovery allowed to establish that factual record - application of Brady doctrine.

4. Relief if "enemy combatant" status disproved - release under conditons; e.g., Parhat and the Uighurs.

5. Relief if "enemy combatant" status proved - detention for the "duration of hostilities", whatever that means ? Or is there another remedy that might be found ?

Judge Allred has already held against Hamdan factually and legally as to points 1 through 3. If Judge Allred's findings on those points are considered res judicata against Hamdan in the habeas case, the DC District judge would be compelled to address point 5 only, since point 4 would be barred by Judge Allred's adjudication.

A key point lost among the trees of this forest is that detention of an "enemy combatant" is an issue distinct from prosecution of the detainee for a crime.

All these issues will still exist even if the new administration and Congress abolish the MCA commissions and transfer everything to the Federal courts (which seems the basic Obama plan as explained in a prior post).

jmm99
10-31-2008, 06:55 PM
The end is near in what so far has been the strangest of the "war crimes" hearings.


Oct 31, 11:43 AM EDT
2nd Gitmo war crimes trial nears close
By DAVID MCFADDEN
Associated Press Writer

GUANTANAMO BAY NAVAL BASE, Cuba (AP) -- U.S. military prosecutors planned to rest their case Friday in the war-crimes trial of a man accused of making propaganda videos for al-Qaida.

The final day of arguments will end a lopsided legal proceeding in which the lawyer for Ali Hamza al-Bahlul acceded to his client's desire to mount no defense, refusing even to answer the judge's questions.
.....
On Friday, prosecutors were expected to deliver closing statements, after which a panel of nine U.S. military officers will begin deliberations.

Al-Bahlul's Pentagon-appointed defense lawyer, Air Force Maj. David Frakt, will not be making any closing statements.

Al-Bahlul, of Yemen, is charged with conspiracy, solicitation to commit murder and supporting terrorism. He faces up to life in prison if convicted.

http://hosted.ap.org/dynamic/stories/C/CB_GUANTANAMO_MILITARY_TRIAL?SITE=VABRM&SECTION=HOME&TEMPLATE=DEFAULT

Goebbels cheated the Nuremburg docket by committing suicide before WWII ended. Hamza, a very mini-Goebbels at most, is committing a form of legal suicide by refusing to present a defense. Still, he is firmly sticking to his religio-political convictions that only God's law (as interpreted by AQ) can be acknowledged in this world.

jmm99
10-31-2008, 07:51 PM
This comment deals with two statements. The first is by the former prosecutor of the case; the second is the article's statement about the standard for excluding Jawad's statement.

The first statement is from Darrel Vandeveld, who has generated quite a bit of controversy.


Oct 29, 7:06 PM EDT
Former prosecutor says Gitmo ruling wrecks US case
By MIKE MELIA
Associated Press

SAN JUAN, Puerto Rico (AP) -- The dismissal of a confession that a U.S. military judge said was tortured out of a young Afghan prisoner has "eviscerated" the government's case against him at Guantanamo Bay, the former case prosecutor said Wednesday.

The statements Mohammed Jawad made to Afghan officials following his capture in 2002 were among the most important evidence for his upcoming war crimes trial, said Darrel Vandeveld, who quit last month in a dispute over the handling of the case.

"To me, the case is not only eviscerated, it is now impossible to prosecute with any credibility," Vandeveld told The Associated Press.
....
Jawad made the disqualified statements on Dec. 17, 2002, to officials including the Afghan Interior Minister.

Vandeveld, a lieutenant colonel in the Army reserves, said other incriminating statements that Jawad made in U.S. custody at Bagram, Afghanistan, and Guantanamo are unusable because "they were clearly tainted by mistreatment."

He said that leaves only statements that Jawad made shortly after he entered U.S. custody, but those are also plagued by problems. For example, he said the interrogators' reports and a videorecording of the questioning have been lost.

http://hosted.ap.org/dynamic/stories/C/CB_GUANTANAMO_TORTURE_RULING?SITE=VABRM&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2008-10-29-19-06-38

The MCA judge has not yet ruled on the Bagram & Gitmo statements. LTC Vandeveld's comment that "they were clearly tainted by mistreatment" may mean that he claims actual mistreatment to Jawad by US forces - or, as likely, that the later statements were built on the excluded 17 Dec 2002 statement. If so, they arguably would be "tainted" under the "fruit of the poisoned tree" theory.

Note that where a statement is excluded under the "totality of circumstances" rule (proof of coercive misconduct as opposed to a technical violation of Miranda), a court will be able more easily to find "tainted fruit".

If the interrogators' reports and a videorecording of the initial questioning (just after the incident) have been lost, the best evidence in the case is simply gone. Those, combined with somewhat ambiguous eyewitness testimony (doesn't make Jawad the perp, but places him at the scene), would make a presentable case. What a screw-up.

So, Vandeveld may be correct that this case is FUBAR - we shall see after the 1st of the year.

----------------------------------
The second statement is from the article:


The military tribunals at the Guantanamo Bay Naval Base in southeast Cuba allow evidence obtained through coercion but not torture, leaving it up to judge to decide when the line is crossed. In this case, Henley said the death threat was credible enough to amount to torture.
....
The torture ruling marks the latest controversy in a case that has produced evidence of sleep deprivation at Guantanamo, questions about the appropriate treatment of a minor and Vandeveld's claim last month that the government has withheld evidence helpful to detainees.

That simply ain't the law.

The MCA provides a clear standard (in 3 parts) determining admission or exclusion of statements:


§ 948r. Compulsory self-incrimination prohibited; treatment of statements obtained by torture and other statements

(a) IN GENERAL.—No person shall be required to testify against himself at a proceeding of a military commission under this chapter.

(b) EXCLUSION OF STATEMENTS OBTAINED BY TORTURE.—

A statement obtained by use of torture shall not be admissible in a military commission under this chapter, except against a person accused of torture as evidence that the statement was made.

(c) STATEMENTS OBTAINED BEFORE ENACTMENT OF DETAINEE TREATMENT ACT OF 2005.—

A statement obtained before December 30, 2005 (the date of the enactment of the Defense Treatment Act of 2005) in which the degree of coercion is disputed may be admitted only if the military judge finds that—

(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and

(2) the interests of justice would best be served by admission of the statement into evidence.

(d) STATEMENTS OBTAINED AFTER ENACTMENT OF DETAINEE TREATMENT ACT OF 2005.—

A statement obtained on or after December 30, 2005 (the date of the enactment of the Defense Treatment Act of 2005) in which the degree of coercion is disputed may be admitted only if the military judge finds that—

(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value;

(2) the interests of justice would best be served by admission of the statement into evidence; and

(3) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment prohibited by section 1003 of the Detainee Treatment Act of 2005.

Jawad's 2002 statement (in which the degree of coercion was disputed) comes under § 948r(c). Yet, this case will be enshrined in news headlines as the case where the 15-year old kid was tortured by US allied forces - and sometimes the word "allied" will be left out.

jmm99
11-02-2008, 12:58 AM
A quiet day on this legal front.


Verdict reached but not read at Guantanamo
Jane Sutton –
Fri Oct 31, 6:57 pm ET

Reuters – GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) – U.S. military jurors reached a verdict on Friday in the Guantanamo trial of Osama bin Laden's accused media chief, who is accused of inciting murder and inspiring September 11 hijackers.

But the verdict will not be announced until Yemeni defendant Ali Hamza al Bahlul, who could face life in prison, is brought back into the courtroom on Monday, one day before the U.S. presidential election.

Moving prisoners from the detention center to the hilltop court at the U.S. naval base in Guantanamo Bay, Cuba, is a laborious process and the judge, Air Force Col. Ron Gregory, wanted to give the guard staff the weekend off.

The jury of nine U.S. military officers deliberated about four hours before reaching their verdict on charges that Bahlul conspired with al Qaeda to attack civilians, solicited murder and gave material support for terrorism. ....

http://news.yahoo.com/s/nm/20081031/us_nm/us_guantanamo_hearings

---------------------------------------------
The Uighurs are back at it - en banc review - again.


Detainees try again for en banc review
Friday, October 31st, 2008 8:36 pm | Lyle Denniston
.......
Lawyers for 17 Guantanamo Bay prisoners on Friday filed a new plea for the full ten-judge D.C. Circuit Court to rule on the courts’ power to order release of detainees no longer considered enemies. At the same time, they argued that the President and his aides are seeking to put any remedy for detainees out of reach so as to gain a “blank check” to hold them indefinitely, perhaps for life. .....

http://www.scotusblog.com/wp/detainees-try-again-for-en-banc-review/

The Uighurs' motion is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/10/uighurs-initial-en-banc-pet-10-31-08.pdf

En banc review is very discretionary. In this case, the DC Circuit would have no real downside to grant it. That would allow putting off the oral arguments (now set for 24 Nov) into December, with a decision not to be reasonably expected until 2009. Plenty of time for the court to read the election returns.

jmm99
11-02-2008, 02:49 AM
This week saw another verdict in a "war crimes" trial - that of Charles McArthur Emmanuel, aka Roy M. Belfast Jr. & Charles "Chuckie" Taylor Jr., son of former Liberian President Charles Taylor, himself on trial before an international tribunal charged with war crimes and crimes against humanity.


US jury convicts son of ex-Liberian president
By CURT ANDERSON - 2 days ago

MIAMI (AP) - A federal jury on Thursday convicted the son of former Liberian President Charles Taylor in the first case brought under a 1994 U.S. law allowing prosecution for torture and atrocities committed overseas.

Charles McArthur Emmanuel, also known as Charles "Chuckie" Taylor Jr., was convicted of torture, firearms and conspiracy charges on the second day of jury deliberations. He faces life in prison, with sentencing set for Jan. 9.

Prosecutors said the 31-year-old Emmanuel was involved in killings and torture as head of an elite antiterrorist unit in his father's government also known as the "Demon Forces." From 1999 to 2002, Emmanuel's job was to use his paramilitary soldiers to silence opposition to Taylor and train soldiers for conflict in neighboring African countries, according to trial testimony. ....
.....
Emmanuel is a U.S. citizen who was born in 1977 in Boston to a girlfriend of Taylor, who was a college student there at the time. Emmanuel's mother later remarried and moved the family to Orlando.

Court records show Emmanuel was involved in a long string of crimes, eventually leaving the U.S. to join his father in Liberia in 1997 and using the name Chuckie Taylor. After the elder Taylor left office in August 2003, Emmanuel fled to Trinidad and eventually decided to return to the U.S.

The torture trial took place in Miami because Emmanuel arrived here in March 2006 with a passport he obtained after giving a false name for his father on its application. Emmanuel pleaded guilty to passport fraud and was sentenced to 11 months in prison, then stood trial on the torture indictment.

http://ap.google.com/article/ALeqM5i0_KNrOkqH3FPQc3bN0F2AtoAwrgD945315G2

This case was a first under ther Federal Anti-Torture Act, 18 USC §§ 2340-2340B, which defines "torture" as follows:


§ 2340. Definitions

As used in this chapter -

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from -

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and

(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.

Note, with some justice to Judge Henley, his use of the term "torture" in Jawad (posts ## 121 & 124 above) is arguably supported by the definition in the Torture Act ("(C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death...."). However, Judge Henley was not deciding a Torture Act case. In the context of his decision, it was not necessary to find "torture" to exclude Jawad's statement - which was my point.

The statute goes on to set out the sentences and bases of jurisdiction.


§ 2340A. Torture

(a) Offense.- Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

(b) Jurisdiction.- There is jurisdiction over the activity prohibited in subsection (a) if -

(1) the alleged offender is a national of the United States; or

(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.

(c) Conspiracy.- A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

§ 2340B. Exclusive remedies

Nothing in this chapter shall be construed as precluding the application of State or local laws on the same subject, nor shall anything in this chapter be construed as creating any substantive or procedural right enforceable by law by any party in any civil proceeding.

Note that the statute has two bases for jurisdiction (nationality jurisdiction & territorial jurisdiction - both over the offender; since the crime can be committed anywhere, a species of universal jurisdiction is a base as to the crime itself).

Be aware that many of a particular attitude have called for prosecutions of US military, agency personnel and government officials under this statute. So, it could be a two-edged sword.

There is another two-edged sword which also lurks in the background. You might say that tonite I am being a bit paranoid - that is, you might say that no "good guys" will ever be prosecuted under these provisons. Hopefully, that will be so.

jmm99
11-02-2008, 02:55 AM
The Anti-Torture Act of 1994 was followed by the 1996 War Crimes Act, 18 USC § 2441, which in its current iteration reads:


18 USC § 2441 - War crimes

(a) Offense. -- Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

(b) Circumstances. -- The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).

(c) Definition. -- As used in this section the term “war crime” means any conduct --

(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;

(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;

(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or

(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

This statute is based on nationality jurisdiction as to both offender and victim (a US non-national who is a member of the US armed forces is also included). So, there are four basic situations covered:


1. US national is offender; victim can be anyone.

2. US forces member is offender; victim can be anyone.

3. Anyone is offender; US national is victim.

4. Anyone is offender; US forces member is victim.

This statute is very broad - one might consider its application to an armed force which has neither accepted nor applied the GCs; and, has committed grave breaches of the GCs in particular cases (e.g., the Taliban and AQ).

On the other hand, it also is a two-edged sword - since it could be aimed at US military, agency personnel and government officials by those who wish that result.

The definition of war crimes incorporates by reference a great many provisions of the GCs, which define "garve abuses". I have attempted to quote some of them below in separate parts.

I am not in love with this type of criminal statute. It incorporates too many GC provisions, as to which there are substantial arguments as to meaning.

jmm99
11-02-2008, 03:03 AM
All documents are from the ICRC web site. The "grave breach" provisions are found in all four conventions. They are given in full for GC I, with changes only quoted for GC II-IV (otherwise, the articles in GC II-IV are the same as GC I, but with different numbering).


(1) The term “war crime” means any conduct defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party.

Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949. [GC I]


Chapter IX. Repression of Abuses and Infractions

Art. 49. The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.

In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following, of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949.

Art. 50. Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

Art. 51. No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article.

Art. 52. At the request of a Party to the conflict, an enquiry shall be instituted, in a manner to be decided between the interested Parties, concerning any alleged violation of the Convention.

If agreement has not been reached concerning the procedure for the enquiry, the Parties should agree on the choice of an umpire who will decide upon the procedure to be followed.

Once the violation has been established, the Parties to the conflict shall put an end to it and shall repress it with the least possible delay.

----------------------------------------
GC II, chap VIII, arts. 50-53;


Chapter VIII. Repression of Abuses and Infractions

Art 51. Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

----------------------------------------
GC III, pt. VI, sec. I, arts. 129-132


Part VI. Execution of the Convention
Section I. General Provisions

Art 130. Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.

--------------------------------------------------------
GC IV, pt. IV, sec. I, arts. 146-149


Part IV. Execution of the Convention
Section I. General Provisions

Art. 147. Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

The commentaries on these provisions would consume many more pages.

jmm99
11-02-2008, 03:16 AM
Applicability of Art. 105 et seq. below, comes from GC I "Chapter IX. Repression of Abuses and Infractions" (and the same or similar terms in the other GCs).


Art. 49. The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.
....
In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following, of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949.

Some of a particular attitude would argue that the Gitmo proceedings are subject to Art. 105-108 - and that the present DTA and MCA proceedings are themserlves "war crimes" under the Federal statute - as well as violating GC III, pt. VI, sec. I, arts. 130 (..."wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention ..").

All quotes below are from GC III, "Chapter III. Penal and Disciplinary Sanctions III. Juridicial Proceedings".

Trial and Basic Due Process


Art 105. The prisoner of war shall be entitled to assistance by one of his prisoner comrades, to defence by a qualified advocate or counsel of his own choice, to the calling of witnesses and, if he deems necessary, to the services of a competent interpreter. He shall be advised of these rights by the Detaining Power in due time before the trial.

Failing a choice by the prisoner of war, the Protecting Power shall find him an advocate or counsel, and shall have at least one week at its disposal for the purpose. The Detaining Power shall deliver to the said Power, on request, a list of persons qualified to present the defence. Failing a choice of an advocate or counsel by the prisoner of war or the Protecting Power, the Detaining Power shall appoint a competent advocate or counsel to conduct the defence.

The advocate or counsel conducting the defence on behalf of the prisoner of war shall have at his disposal a period of two weeks at least before the opening of the trial, as well as the necessary facilities to prepare the defence of the accused. He may, in particular, freely visit the accused and interview him in private. He may also confer with any witnesses for the defence, including prisoners of war. He shall have the benefit of these facilities until the term of appeal or petition has expired.

Particulars of the charge or charges on which the prisoner of war is to be arraigned, as well as the documents which are generally communicated to the accused by virtue of the laws in force in the armed forces of the Detaining Power, shall be communicated to the accused prisoner of war in a language which he understands, and in good time before the opening of the trial. The same communication in the same circumstances shall be made to the advocate or counsel conducting the defence on behalf of the prisoner of war.

The representatives of the Protecting Power shall be entitled to attend the trial of the case, unless, exceptionally, this is held in camera in the interest of State security. In such a case the Detaining Power shall advise the Protecting Power accordingly.

Right of Appeal


Art 106. Every prisoner of war shall have, in the same manner as the members of the armed forces of the Detaining Power, the right of appeal or petition from any sentence pronounced upon him, with a view to the quashing or revising of the sentence or the reopening of the trial. He shall be fully informed of his right to appeal or petition and of the time limit within which he may do so.

Sentence and Execution


Art 107. Any judgment and sentence pronounced upon a prisoner of war shall be immediately reported to the Protecting Power in the form of a summary communication, which shall also indicate whether he has the right of appeal with a view to the quashing of the sentence or the reopening of the trial. This communication shall likewise be sent to the prisoners' representative concerned. It shall also be sent to the accused prisoner of war in a language he understands, if the sentence was not pronounced in his presence. The Detaining Power shall also immediately communicate to the Protecting Power the decision of the prisoner of war to use or to waive his right of appeal.

Furthermore, if a prisoner of war is finally convicted or if a sentence pronounced on a prisoner of war in the first instance is a death sentence, the Detaining Power shall as soon as possible address to the Protecting Power a detailed communication containing:

(1) the precise wording of the finding and sentence;

(2) a summarized report of any preliminary investigation and of the trial, emphasizing in particular the elements of the prosecution and the defence;

(3) notification, where applicable, of the establishment where the sentence will be served.

The communications provided for in the foregoing sub-paragraphs shall be sent to the Protecting Power at the address previously made known to the Detaining Power.

Imprisonment


Art 108. Sentences pronounced on prisoners of war after a conviction has become duly enforceable, shall be served in the same establishments and under the same conditions as in the case of members of the armed forces of the Detaining Power. These conditions shall in all cases conform to the requirements of health and humanity.

A woman prisoner of war on whom such a sentence has been pronounced shall be confined in separate quarters and shall be under the supervision of women.

In any case, prisoners of war sentenced to a penalty depriving them of their liberty shall retain the benefit of the provisions of Articles 78 and 126 of the present Convention. Furthermore, they shall be entitled to receive and despatch correspondence, to receive at least one relief parcel monthly, to take regular exercise in the open air, to have the medical care required by their state of health, and the spiritual assistance they may desire. Penalties to which they may be subjected shall be in accordance with the provisions of Article 87, third paragraph.

Just to make it clear, IMO these provisions are not mandatory as to the Taliban and AQ detainees; even though the updated DTA and MCA incorporate a number of them.

jmm99
11-02-2008, 03:23 AM
(2) The term “war crime” means conduct prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907.

In general, these are not potential problem areas for US forces; realizing that some out there are quite capable of turning anything into a problem.


SECTION II
HOSTILITIES

CHAPTER I

Means of injuring the enemy, sieges, and bombardments

Art. 23. In addition to the prohibitions provided by special Conventions, it is especially forbidden

(a) To employ poison or poisoned weapons;

(b) To kill or wound treacherously individuals belonging to the hostile nation or army;

(c) To kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion;

(d) To declare that no quarter will be given;

(e) To employ arms, projectiles, or material calculated to cause unnecessary suffering;

(f) To make improper use of a flag of truce, of the national flag or of the military insignia and uniform of the enemy, as well as the distinctive badges of the Geneva Convention;

(g) To destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war;

(h) To declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party. A belligerent is likewise forbidden to compel the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war.

Art. 25. The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.

Art. 27. In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes. It is the duty of the besieged to indicate the presence of such buildings or places by distinctive and visible signs, which shall be notified to the enemy beforehand.

Art. 28. The pillage of a town or place, even when taken by assault, is prohibited.


---------------------------------------------------------------------

(3) The term “war crime” means conduct which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict.

Common Art. 3 is a subject of great controversy - which is applicable to the Taliban and AQ detainees.


Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

-------------------------------------------

(4) The term “war crime” means conduct of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

The Land Mine provision will have to be examined at a later time. Enough is enough.

This extensive review of the Anti-Torture and War Crimes Acts has a purpose at this point in the continuing "war crimes" saga.

We are about to get into a series of cases in which allegations of torture will abound - and I expect that some of those allegations will prove out. Some of the up-coming cases will be messy - damned messy.

jmm99
11-02-2008, 09:07 PM
I was mucking about and came onto several opinion articles on torture at The First Post (UK), whose front page is here (http://www.thefirstpost.co.uk/).

Here are the articles (of various slants and positions).


The Torturer's Tale
By Jolyon Jenkins
FIRST POSTED OCTOBER 27, 2008
Tony Lagouranis never expected to become a torturer. He didn't even really want to be a soldier. But at 30, he was bored and broke. He had a facility with languages, fancied learning Arabic, and figured the US army would teach him for free and help him clear his student debts. When he started his training, the Twin Towers were still intact and no one expected the US to go to war in Iraq. .....

http://www.thefirstpost.co.uk/45726,opinion,the-torturers-tale


Let’s be realistic about torture
Legitimising the practice would allow it to be used more honestly and effectively, says ASH Smyth

Torture is, unequivocally, bad news. It inflicts lasting physical and mental damage. It dehumanises the victim, and also the torturer. It stiffens enemy resolve. It is illegal under 'international law'. And the use of torture, as Philippe Sands QC discusses in his new book, The Torture Team, is rot in the very roots of a democratic nation.

What's more, information gathered is often dubious. Some suspects hold out; some will say anything. In short, torture doesn't work.

Except that it does. Sometimes. ......

http://www.thefirstpost.co.uk/34645,opinion,legalising-torture-would-make-it-more-effective


Torture: it’s the American way
But the American public remains sanguine about the use of force,
says alexander cockburn

Torture has always been a word that stirs the CIA to hot denials of its practice, despite copious documentation to the contrary. ....

http://www.thefirstpost.co.uk/9803,opinion,alexander-cockburn-torture-it039s-the-american-way


Torture works on 24, but not for real
You don’t protect the innocent by ‘breaking’ defenceless prisoners, says matthew carr

We are all familiar with the scenario. A bomb is timed to explode in 24 hours and the counter-terrorist agent has caught the terrorist who knows where it is. Thousands of innocent people will die unless the terrorist reveals his secret. ....

http://www.thefirstpost.co.uk/5511,opinion,torture-works-on-24-but-not-for-real

These are but some of 1000s of opinion pieces on torture.

What there is to debate under US law (unless it is repeal of the 1994 Anti-Torture Act) is beyond me. Of course, the 1994 statute has been largely ignored - until "Chuckie II" was convicted under it last week.

-------------------------------------------
I should avoid the issue of the "ticking time bomb" - as most politicians do. However, since it is mentioned in the last-quoted article, I have to bloviate. IMO, the case is not that complex.

Torture is illegal; so is murder. If I have a reasonable belief that someone is threatening you with deadly bodily harm, I have a right to stop that someone by any means, including the use of deadly force.

Now, no question that what I do will be an intentional homicide; but not murder, if my defense based on the defense of another holds up. E.g., if I take out Slap who is in the process of making a lawful arrest, I will probably find myself in trouble.

Now, to the "ticking time bomb" in two instances. The first is the CPT who holds a pistol to someone's head - where that someone knows the location of an ambush planned for CPT's company. Maybe, passes a round or two past his ear. If the ambush is prevented, it seems to me that we have an instance where otherwise illegal force might be justified by the defense of others (the company).

If you can kill someone to defend others, torture of that someone seems a less extreme measure under the same circumstances.

The other is the President and a WMD. Same analysis in my mind. The question to me is who tries the President's "defense of others" defense. Obviously, not the President himself, since then we would have a dictatorship. Haven't heard any candidate get that far in the legal analysis.

Just some thoughts on a quiet, but dreary, Sunday in the Copper Country.

jmm99
11-03-2008, 06:27 PM
GC I-IV, common Art. 3, was something of an after-thought when it was drafted in 1949. It was originally intended to cover the relations between a High Contracting Party and a domestic insurgency within the borders of the HCP, which had developed into an armed conflict.

Over the last 50 years, common Art. 3 has morphed to cover situations which fit the original model and some that have not.

The Taliban and AQ in Afghanistan do fit the original model, if we limit our view to Afghanistan; and realize that, under US law, there was no recognized government in Afghanistan for the period 1997-2001 - see the "Defending Hamdan" thread for the explanation.

However, AQ added a new dimension to the problem, since its activities crossed international borders (e.g., the 9/11 attacks). So also, the present situation where the Taliban acts in both Afghanistan and Pakistan goes beyond the original common Art. 3 model.

In short, common Art. 3 has become a source of law to cover insurgencies by non-national actors whose acts occur in more than one nation. Since that was not its original purpose, its language does not well define the situations to which it is now applied.

When Congress passed the 2006 MCA, it added a set of definitions that represented its view of the war crimes that are based on "grave breaches" of common Art. 3. The provisions of 2441(a)-(c) were unchanged, except for a minor change in 1441(c)(3); but a new section, 2441(d), was added.

Revised 18 USC § 2441 reads as follows


(a) Offense.— Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

(b) Circumstances.— The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).

(c) Definition.— As used in this section the term “war crime” means any conduct—

(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;

(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;

(3) which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed conflict not of an international character; or

(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

(d) Common Article 3 Violations.—

(1) Prohibited conduct.— In subsection (c)(3), the term “grave breach of common Article 3” means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:

(A) Torture.— The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.

(B) Cruel or inhuman treatment.— The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control.

(C) Performing biological experiments.— The act of a person who subjects, or conspires or attempts to subject, one or more persons within his custody or physical control to biological experiments without a legitimate medical or dental purpose and in so doing endangers the body or health of such person or persons.

(D) Murder.— The act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause.

(E) Mutilation or maiming.— The act of a person who intentionally injures, or conspires or attempts to injure, or injures whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause, by disfiguring the person or persons by any mutilation thereof or by permanently disabling any member, limb, or organ of his body, without any legitimate medical or dental purpose.

(F) Intentionally causing serious bodily injury.— The act of a person who intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war.

(G) Rape.— The act of a person who forcibly or with coercion or threat of force wrongfully invades, or conspires or attempts to invade, the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused, or with any foreign object.

(H) Sexual assault or abuse.— The act of a person who forcibly or with coercion or threat of force engages, or conspires or attempts to engage, in sexual contact with one or more persons, or causes, or conspires or attempts to cause, one or more persons to engage in sexual contact.

(I) Taking hostages.— The act of a person who, having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons.

(2) Definitions.— In the case of an offense under subsection (a) by reason of subsection (c)(3)—

(A) the term “severe mental pain or suffering” shall be applied for purposes of paragraphs (1)(A) and (1)(B) in accordance with the meaning given that term in section 2340 (2) of this title;

(B) the term “serious bodily injury” shall be applied for purposes of paragraph (1)(F) in accordance with the meaning given that term in section 113 (b)(2) of this title;

(C) the term “sexual contact” shall be applied for purposes of paragraph (1)(G) in accordance with the meaning given that term in section 2246 (3) of this title;

(D) the term “serious physical pain or suffering” shall be applied for purposes of paragraph (1)(B) as meaning bodily injury that involves—

(i) a substantial risk of death;

(ii) extreme physical pain;

(iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or

(iv) significant loss or impairment of the function of a bodily member, organ, or mental faculty; and

(E) the term “serious mental pain or suffering” shall be applied for purposes of paragraph (1)(B) in accordance with the meaning given the term “severe mental pain or suffering” (as defined in section 2340 (2) of this title), except that—

(i) the term “serious” shall replace the term “severe” where it appears; and

(ii) as to conduct occurring after the date of the enactment of the Military Commissions Act of 2006, the term “serious and non-transitory mental harm (which need not be prolonged)” shall replace the term “prolonged mental harm” where it appears.

(3) Inapplicability of certain provisions with respect to collateral damage or incident of lawful attack.— The intent specified for the conduct stated in subparagraphs (D), (E), and (F) or paragraph (1) precludes the applicability of those subparagraphs to an offense under subsection (a) by reasons of subsection (c)(3) with respect to—

(A) collateral damage; or

(B) death, damage, or injury incident to a lawful attack.

(4) Inapplicability of taking hostages to prisoner exchange.— Paragraph (1)(I) does not apply to an offense under subsection (a) by reason of subsection (c)(3) in the case of a prisoner exchange during wartime.

(5) Definition of grave breaches.— The definitions in this subsection are intended only to define the grave breaches of common Article 3 and not the full scope of United States obligations under that Article.

The 2006 MCA amendment went well beyond the very basic language used in common Art. 3 (quoted above in post # 130). It incorporates by reference several definitions of the Anti-Torture Act, 18 USC § 2340.

In effect, 18 USC § 2441(d) enacted common Art. 3 (as defined by Congress in the statute) as positive US law - and, as an expression by the Legislative and Executive branches of their construction of that treaty provision. Presumably, that construction would be binding on the Judicial branch.

jmm99
11-03-2008, 06:40 PM
Guantanamo jury convicts bin Laden's media man
Mon Nov 3, 2008 12:06pm EST
By Jane Sutton

MIAMI (Reuters) - A U.S. military tribunal found Osama bin Laden's media secretary guilty of conspiring with al Qaeda, soliciting murder and providing material support for terrorism in a verdict announced on Monday.

Yemeni prisoner Ali Hamza al Bahlul is the second man to be convicted by a jury in the war crimes court at the U.S. naval base in Guantanamo Bay, Cuba. He faces life in prison and could learn his sentence on Monday.

The jury of nine U.S. military officers deliberated about four hours before reaching their verdict on Friday after a weeklong trial.
.....
Only one more trial is scheduled before U.S. President George W. Bush leaves office in January, a case against a young Afghan accused of throwing a grenade that wounded two U.S. soldiers and their interpreter.

A Guantanamo judge threw out key prosecution evidence in that case last week, ruling defendant Mohammed Jawad's confession to Afghan police had been obtained through torture. The judge is still considering a defense request to drop the charges entirely.

http://www.reuters.com/article/topNews/idUSTRE49R5OZ20081103

Not a surprise, since there was no defense presented.

Once Jawad's case is decided, the curtain will close on war crimes prosecutions tried during the term of the present administration. To paraphrase T.S. Eliot's "The Hollow Man" - this world ends with a whimper not a bang. On the positive side, we have not had any bangs in the US since 9/11.

jmm99
11-05-2008, 06:45 PM
A 3-judge DC Circuit panel entered a stay order in a DTA case we haven't discussed before. There are some 150 DTA cases in that court, appealing determinations made by CSRTs.


Circuit Court: DTA process is probably dead
Tuesday, November 4th, 2008 5:31 pm | Lyle Denniston
.......
Detainees at Guantanamo Bay apparently no longer have the option of pursuing challenges to their confinement in two separate courts, according to a ruling by the D.C. Circuit Court on Tuesday. In a significant victory for the government – unexpected in the case – a three-judge panel said the Detainee Treatment Act system of civilian court review of military detention probably has not survived the Supreme Court’s revival, in Boumediene v. Bush, of the detainees’ alternative mode of challenge — federal habeas cases. ....

http://www.scotusblog.com/wp/circuit-court-dta-process-is-probably-dead/

The order (a 9 pp. per curiam by JJ. Henderson, Randolph and Brown) is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/11/basardh-ruling-ca-11-4-08.pdf

The opinion is unremarkable; other than employing an innovative methodology in determining what Congress would have done, if it had been confronted with a choice with which it was not confronted when the statute was passed - and that by at least two "strict constructionists" (Henderson & Randolph). All that is irrelevant in the larger scheme of things. The detainee can file for en banc review by the 10-judge DC Circuit, as other detainees have done in other cases which we have discussed.

----------------------------------
Given the election results, the DC Circuit may well decide to place all of these DTA cases on hold. We may be fairly well assured that the Obama-Biden administration will make changes in two areas where both of them have had an expressed professional interest as lawyers:

1. The entire DTA-MCA system, which their platform sought to abolish - their replacement would be proceedings under the UCMJ and under Federal criminal law in the District courts. Exactly how they would do that remains to be seen.

2. Overhaul of the DoJ, which I expect will be thorough - including not only political appointees (whose resignations will be cheerfully accepted); but also review of a number of hires during the Bush administration. I expect that a number of career attorneys hired during that administration will find the changes in management uncomfortable and will leave of their own accord.

I expect the DC District habeas cases to continue since the Federal District courts are going to be very much in the future game plan.

jmm99
11-06-2008, 05:49 PM
It seems the DC Circuit is about to shut down DTA, since orders were entered in several cases by the panels themselves to address the issue of whether this summer's decision of Boumediene v. Bush quashed DC Circuit review of DTA determinations - leaving the habeas cases as the sole avenue of review.


Showdown over DTA’s future
Wednesday, November 5th, 2008 5:17 pm | Lyle Denniston
......
The D.C. Circuit Court, moving to resolve a sharp dispute over two simultaneous levels of civilian court review of wartime military detentions, on Wednesday set up a showdown hearing for Nov. 20 on whether to scuttle the entire process set up by Congress under the Detainee Treatment Act of 2005. Acting one day after one Circuit Court panel had given new impetus to a government effort to end DTA review, another panel ordered a hearing on whether that Court has lost its DTA jurisdiction to review “enemy combatant” designations by Pentagon tribunals......

http://www.scotusblog.com/wp/showdown-over-dtas-future/#more-8208

Lyle adds a list of cases that will be affected by these upcoming decisions.


NOTE TO READERS: This array of cases and issues may be confusing. Here is a summary of the cases and how they fit together:

Bismullah – the underlying case on DTA procedures. Panel rehearing, limited to the Court’s DTA jurisdiction, was ordered, based on the Basardh decision. Argument set Nov. 20. (En banc rehearing question in Bismullah postponed.)

Basardh — the ruling questioning Circuit Court power to decide DTA cases. It gave rise to the rehearing order in Bismullah. It was based on an intepretation of the Supreme Court’s Boumediene decision.

Boumediene – June 12 Supreme Court ruling restoring habeas rights for detainees.

Kiyemba — the test of judges’ power to release the Uighur detainees into the U.S. It is scheduled for argument Nov. 24. One issue is whether the Court must follow its June ruling in Parhat.

Parhat — the first DTA ruling on the merits, ordering release or transfer of one Uighur. The Basardh ruling raises a question about the Court’s jurisdiction to issue the Parhat decision.

The panel order setting the 20 Nov hearing, solely on the issue of DTA jurisdiction, is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/11/bismullah-i-11-5-08.pdf

The en banc order (all DC Circuit judges), presently staying en banc consideration, is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/11/bismullah-order-ii-11-5-08.pdf

An unintended side effect of the jurisdictional issue is to call into question the decision in the Parhat case. That is not on substantive grounds (he is not going to suddenly become an "unlawful enemy combatant"); but a "no DTA jurisdiction" ruling would void (for the time being) the DC Circuit determination that he was not an enemy combatant at all. That issue would then have to go back to the DC District court (Judge Urbina), who would then find that Parhat and the rest of the Uighurs were not enemy combatants (since the government has already conceded that).

I wouldn't be surprised if the DoJ of the new administration will review the Uighur cases and probably arrive at some settlement that will allow their release.

jmm99
11-07-2008, 03:32 AM
but first, a brief comment on possible blowback from the very possible forthcoming decision by the DC Circuit that it has no jurisdiction to review DTA cases - which is the position of DoJ in its last filings.

Without going into the full song and dance routine, the basic problem is this.


1. The Constitution requires that, at some point, an Article III court must have jurisdiction to review Federal questions (issues under the Constitution and Federal statutes are the primary bases).

2. The DTA met that Constitutional requirement by providing for that review by the DC Circuit - and by that court only.

3. If the DC Circuit finds that it has no DTA jurisdiction, the DTA statute provides for no Article III review; that statute is therefore unconstitutional - and the entire CSRT process is tainted.

4. Hence, all CSRT determinations are invalid; and none of the Gitmo detainees have been validly determined to be "unlawful enemy combatants"; unless they have been so determined by a separate, constitutional process.

5. I know of one such determination; in Hamdan, where Keith Allred (doubting the constitutionality of the CSRT process) held an independent evidentiary hearing and determined that Hamdan was an "unlawful enemy combatant". Hamza may be another (I haven't looked at the record there).

That blowback (unless my thoughts are totally cracked) would affect the habeas cases, which turn on whether there was sufficent evidence to justify the CSRT determinations in those cases. If all CSRT determinations are void, all Gitmo detainees would be in the same boat as the Uighurs.

--------------------------------------
Judge Hogan, who is case-managing 113 habeas cases, has entered an order very similar to that entered by Judge Leon, who has started the first merits hearing in his cases.


Rules set for 113 detainee cases
Thursday, November 6th, 2008 5:45 pm | Lyle Denniston
.....
The U.S. District judge who is coordinating scores of Guantanamo Bay detainees’ challenges to continued captivity outlined for the first time on Thursday the ground rules that will govern those cases. Saying he was acting to give the prisoners “prompt habeas corpus review,” Senior Judge Thomas F. Hogan released a “case management order” that he had had under study since late July. It will apply to 113 cases. ...
.....
In broad outlines, as well as in key specifics, the Hogan order closely parallels one that U.S. District Judge Richard J. Leon issued on Aug. 27. ....
.....
[1] ... the Pentagon and Justice Department could justify continued detention of prisoners by “a preponderance of the evidence” — the lowest level of burden of proof.

[2] ... if the government plans to justify detention by showing that the Pentagon has designated a given individual as an “enemy combatant,” it must define what it means by that phrase. [unlike Judge Leon, Judge Hogan did not order briefs on, and himself define, that term]

[3] .... detainees’ lawyers [may have greater] opportunity to compel the government to turn over materials in addition to what it submits in its initial justifications (technically, “factual returns”).

[4] ... the government [has a] duty to turn over to detainees’ lawyers information that it has in its possession that could aid the detainees’ challenge.

[5] Both orders allow the judge to apply a “presumption of accuracy and authenticity” for the government’s evidence against a detainee.

[6] .... both allow either side to offer “hearsay” evidence — evidence supplied without the witness being present.

[7] Neither judge allows a detainee to be present in court for his merits proceeding, but does allow them to have telephonic access to at least the non-classified parts of any such hearing.

http://www.scotusblog.com/wp/rules-set-for-113-detainee-cases/

jmm99
11-08-2008, 02:55 AM
The DoJ filed its reply brief in the DC Circuit appeal of Judge Urbina's habeas order.


U.S. defends indefinite detention power
Friday, November 7th, 2008 4:50 pm | Lyle Denniston
.....
The Justice Department, in the final filing before the D.C. Circuit Court examines a government plea to keep Guantanamo Bay detainees out of the U.S., argued on Friday that the Executive Branch has authority to hold aliens in detention even if they are not considered enemies of the U.S. And, it added, “even if the detention is indefinite, it is still lawful.”
......
The reply brief put new emphasis on the assertion that “the Government retains the sovereign authority, independent of the authority to detain enemy combatants, to hold [the Uighurs] incident to barring them from the United States, and pending efforts to resettle them elsewhere….It is fully lawful for the Government to hold [them] on this second, independent legal basis.”
....
The three-judge panel, considering a series of government appeals (the lead case is Kiyemba v. Bush, 08-5424), is to hold a hearing on Nov. 24. The full nine-judge Circuit Court, however, is now considering a plea by the 17 Uighurs to take the case from the panel and decide it en banc.

http://www.scotusblog.com/wp/us-defends-indefinite-detention-power/

The DoJ brief is here (I had problems trying to download it - perhaps transitory - a metaphor for this case ?)

http://www.scotusblog.com/wp/wp-content/uploads/2008/11/kiyemba-reply-brief-11-7-08.pdf

Why do I doubt that the DoJ position circa 1 Feb 2009 will be the same as it is today ?

jmm99
11-15-2008, 01:44 AM
If any readers out there were wondering why there has been no "War Crimes" news for the past week - well, there has been no news. Judge Leon continues to forge ahead, but in closed sessions because of the large amount of classified evidence involved.

I could have reported some of Andy Worthington's rants, or the media's rampant speculations on what the Obama administration will do with Gitmo or the Gitmo detainees (IMO: it hasn't the foggiest idea; what sounds good on the campaign trail melts when it has to face up to actual issues). But - no.

Anyway, Judge Leon will tell us, next Thursday, whether his first six are wolves or lambs - or perhaps, if he uses the old Scottish verdict form, not proved.


First new ruling set on Guantanamo habeas
Friday, November 14th, 2008 5:29 pm | Lyle Denniston
....
The first ruling by a federal judge on a constitutional challenge by Guantanamo Bay detainees to continued confinement — challenges permitted by the Supreme Court last June — will come Thursday morning, U.S. District Judge Richard J. Leon indicated in an order Friday. The docket entry showed that Leon will announce an “oral opinion” that day at 10 a.m. in his courtroom in downtown Washington.

Judge Leon has been holding mostly closed-door sessions for the past two weeks, testing the Pentagon’s legal and factual basis for continuing to treat the six detainees in the case as “enemy combatants.”
....
Almost simultaneously with Judge Leon’s opinion hearing on Thursday, a three-judge panel of the D.C. Circuit will be holding a hearing on the Justice Department’s efforts to shut down all 190 of the DTA cases, on the theory that Congress did not intend to have two separate judicial forums for detainees’s challenges. The Circuit Court hearing is at 9:30 a.m. Thursday, with the detainee case — Bismullah v. Gates (06-1197) — to follow an unrelated case starting at 9:30. The earlier case is scheduled for an hour and 10 minutes, indicating that Bismullah would probably not begin before 10:45 a.m.

http://www.scotusblog.com/wp/first-new-ruling-set-on-guantanamo-habeas/

This decision will be of interest because it will be the first decision by an Article III Federal judge, deciding the enemy combatant status of Gitmo detainees, based on a full record. Military judge Keith Allred's determination in Hamdan was the first such determination under MCA rules. As noted in prior posts, this determination will be made under Judge Leon's rules.

It is possible that the public decision will not be very informative, as it could look some like this:


The Petitioner is found [to be an enemy combatant] [not to be an enemy combatant] because:

1. Redacted - classified.
2. Redacted - classified
....
X. Redacted - classified

Therefore, the Petitioner is ordered to be [remanded] [released].

We shall see.

The 3-judge panel hearing (oral arguments) in Bismullah v. Gates will have important consequences when it is decided - perhaps well after next Thursday. Bismullah is a complicated case. In a sense, the DoJ is offering the DC Circuit an easier out; but, the logical extension of the DoJ's position would be the unconstitutionality of the DTA process (IMO; see post # 136 above).

jmm99
11-16-2008, 01:29 AM
En banc denied in Uighurs’ case
Saturday, November 15th, 2008 12:44 pm | Lyle Denniston
......
With no noted dissents, the D.C. Circuit Court on Friday refused to grant review before the full Court of the government’s attempt to keep 17 Guantanamo Bay detainees out of the U.S., leaving the issue at least initially with a three-judge panel. In an order released late in the day, the en banc Court of ten judges said that no judge had asked for a vote on the detainees’ plea for initial review by the full Court.

That means that the panel will go forward with a hearing on Monday, Nov. 24, at 9:30 a.m. The panel includes Circuit Judges Karen LeCraft Henderson and Judith W. Rogers and Senior Circuit Judge A. Raymond Randolph. ....

http://www.scotusblog.com/wp/en-banc-denied-in-uighurs-case-2/

The court's 1 page order is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/11/en-banc-denial-uighurs-11-14-08.pdf

This decision is no surprise. The Obama Transition Team is nowhere near deciding which way to go on the Gitmo detainees. The 10 judges of the DC Circuit with justification concluded there was no point in their wading in at this time.

As in the Bismullah DTA case, this case will be first heard by a 3-judge panel. Each of those decisions (plausibly not to be written until next year) can then be appealed to the DC Circuit en banc or to SCOTUS, neither of which have to hear the appeal.

jmm99
11-19-2008, 04:42 AM
Judge Hogan's case management order for most of the habeas cases has been discussed in prior posts. Generally, it resembled Judge Leon's orders in the cases he is now trying (decision on Thursday).


Sweeping challenge to detainee process
Tuesday, November 18th, 2008 11:07 pm | Lyle Denniston
......
Arguing that it would “take months to fulfill” new duties imposed on the government in cases involving some 200 Guantanamo Bay detainees, and protesting orders to make “dramatic” new disclosures of government secrets, the Justice Department on Tuesday night urged a federal judge to cast aside major parts of a recent order laying out how those cases will be processed in court.

As an alternative — and apparently the preferred step — the Department suggested that the case be sent immediately to the D.C. Circuit Court to consider quickly the sweeping challenge. .....

http://www.scotusblog.com/wp/sweeping-challenge-to-detainee-process/

The DoJ's motion is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/11/us-cmo-motions-11-18-08.pdf

The DoJ's proposed orders are here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/11/us-proposed-order-11-18-08.pdf

Declarations by Pentagon and intelligence officials are here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/11/england-declaration-11-18-08.pdf

Declaration by FBI Director Robert S. Mueller is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/11/mueller-declaration-11-18-08.pdf

-----------------------------------------
Since DoJ abided by Judge Leon's order, one might ask why all the fuss about Judge Hogan's order. Of course, DoJ has not been totally consistent in these cases, anyway - so what's new. A cynic might suggest that this flurry of activity is more of a "Please, judge, give us a break. We don't want to handle these cases on our watch - and that will be over in 60 days."

In justice to Justice, the thrust of the motion deals with discovery of exculpatory evidence - the same issue that dominates the Bismullah case in the DC Circuit, where DoJ has also mounted a delaying action.

The declarations reveal quite a bit about the record-keeping procedures used in the detainee cases. Let us say that neither hard-copy nor electronic dossiers exist in complete form as to any of the detainees.

jmm99
11-19-2008, 07:21 PM
Judge Kohlmann, chief judge over the MCA cases, has retired for greener pastures - in which, I wish him every success - his has been a thankless task. Since I did not expect the KSM case to try before next spring, the announcement should not have generated as much excitement as it did in ACLU circles.


Top Judge at Guantanamo Announces Retirement
By Peter Finn
Washington Post Staff Writer
Tuesday, November 18, 2008; A13

The chief military judge at Guantanamo Bay announced his immediate retirement yesterday, effectively scuttling the slim chances that the trial of conspirators in the Sept. 11, 2001, attacks could get underway before the Bush administration ends.

Judge Ralph H. Kohlmann, a Marine colonel, had been overseeing proceedings against major defendants at the military prison in Cuba, including Khalid Sheik Mohammed, the self-professed mastermind of the attacks. It has long been a goal of some Pentagon officials, particularly those appointed by the Bush administration, to begin the capital trial of the Sept. 11 conspirators before leaving office.

Kohlmann, who was scheduled to retire in April and already had lined up a job, appointed Judge Stephen Henley, an Army colonel, to take over the trial of Mohammed and four co-defendants.

Henley now must hold a hearing at which the defendants can explore the judge's potential biases, a proceeding that Kohlmann had already overseen. Henley also will have to acquaint himself with Kohlmann's decisions in the case and prepare for upcoming hearings on defense motions. At the same time, Henley is scheduled to oversee a separate trial of a Guantanamo detainee in January.

"I didn't think there was a chance this would go to trial any time soon, even with Judge Kohlmann," said Navy Lt. Cmdr. Brian Mizer, a military defense lawyer who represents Ammar al-Baluchi (whose formal name is Abdul Aziz Ali), an alleged Sept. 11 co-conspirator. ......

http://www.washingtonpost.com/wp-dyn/content/article/2008/11/17/AR2008111703036_pf.html

In a related development, charges have been re-filed against the "missing 9/11 hijacker". Perhaps, this event was a present to the incoming administration - "Now, you get to decide what to do with this guy." Anyway, here is the story.


NY Times
By WILLIAM GLABERSON
Published: November 18, 2008

Military prosecutors have decided to file new war-crimes charges against a Guantánamo detainee who has been called the 20th hijacker in the Sept. 11 terror plot, discounting claims that his harsh interrogation would make a prosecution impossible.

Earlier charges against the detainee, Mohammed al-Qahtani, were dismissed without explanation by a military official in May and there had been speculation that the Pentagon had accepted the argument that coercive techniques used in questioning him would undermine any trial.

The decision will put additional pressure on the incoming Obama administration to announce whether it will abandon the Bush administration’s military commission system for prosecuting terror suspects. Mr. Qahtani’s well-documented interrogation at the detention camp in Guantánamo Bay, Cuba, has made his case a focal point in debates about Guantánamo and interrogation methods that critics say amount to torture.

In response to questions about the military commissions on Tuesday, Brooke Anderson, the chief national security spokeswoman for the transition, said, “President-elect Obama has repeatedly said that he believes that the legal framework at Guantánamo has failed to successfully and swiftly prosecute terrorists.” .....

http://www.nytimes.com/2008/11/19/us/19gitmo.html?_r=1&partner=rss&emc=rss&pagewanted=all

jmm99
11-20-2008, 02:44 AM
As a change of pace from my propaganda, you might consider Lyle's analysis of five important cases, which are pending with hearings beginning tomorrow (most will be decided later).


Primer on Boumediene’s week of reckoning
Wednesday, November 19th, 2008 2:42 pm | Lyle Denniston

Analysis

Five months and seven days after the Supreme Court’s path-breaking decision in Boumediene v. Bush — the most important so far of its four rulings on “war on terrorism” issues — a week that will test the scope and meaning of that ruling is about to open. It will involve all three levels of the federal judiciary, winding up next Tuesday in the Supreme Court. ...

http://www.scotusblog.com/wp/primer-on-boumedienes-week-of-reckoning/#more-8281

Here are the cases covered by Lyle.


Thursday at 9:30 a.m., U.S. Courthouse, Washington
Bismullah, et al., v. Gates, Circuit docket 06-1197.

The DoJ's theory that all DTA cases must be dismissed will be heard - the prior decisions in the case involved the right of detainees to discover exculpatory evidence. Decision to come later.


Thursday at 10 a.m., U.S. Courthouse
Boumediene, et al., v. Bush, et al., District Court docket 04-1166.

This will be Judge Leon's first ruling on the merits of his retained habeas cases.


Monday at 9:30 a.m., U.S. Courthouse
Kiyemba v. Bush (lead case of six), Circuit docket 08-5424.

The DoJ is attacking Judge Urbina's conditional release order of the Uighurs. Decision to come later.


Monday at 2:30 p.m., U.S. Courthouse
Habashi, et al., v. Bush, et al. (District Court docket 05-765).

Not a merits hearing, but a hearing on discovery of exculpatory evidence. A bench decision is possible; but, if adverse to DoJ, it will be appealed. That also is the underlying issue in the DoJ's attack on Judge Hogan's case management order reported above. I have not reported the Binyam Mohamed case to any great extent because it is long on allegations and short on proven facts - a problem with most of these cases where merits heraings have not been held.


Tuesday morning, Supreme Court Building
Al-Marri v. Pucciarelli (Supreme Court docket 08-368).

SCOTUS in closed conference will vote on whether to grant certiorari (needs 5 in favor). I have not reported much on this case either, because the Court may deny review and remand to the Federal District court for added fact-finding. This case is somewhat akin to Ex Parte Milligan, except that al-Marri is a legal alien and not a citizen.

As usual, a solid analysis by Lyle Denniston.

jmm99
11-20-2008, 08:22 PM
In considering this ruling in Boumediene, et al., v. Bush, et al., District Court docket 04-1166., please keep in mind that Judge Leon is a Bush II appointee (appointment made right around 9/11) - and, from his bio, a person of conservative leanings with experience in dealing with the governmental agencies involved in these combined cases.

In fact, Judge Leon ruled for the government when he first heard these cases. His initial ruling was then appealed to the DC Circuit and then to SCOTUS, which remanded Boumediene back to him for a ruling after a full merits hearing.

As expected, his public opinion from the bench was redacted because of classified information. A written opinion will ensue, which also will be redacted. The lack of evidence as to the five ordered freed is similar to the lack of evidence in Parhat and the other Uighur cases.

Judge Leon's direct message to senior administration officials is unusual to say the least. In reviewing these cases over the past several months, we have seen the DoJ appealing almost everything, including interlocutory rulings which are not usually favored with appeals. No doubt that the DoJ has a legal right to file appeals (interlocutory and final) and have them either accepted or rejected. But, Judge Leon is saying "enough is enough".


Judge orders five detainees freed
Thursday, November 20th, 2008 12:21 pm | Lyle Denniston

UPDATED to 2:00 p.m.

U.S. District Judge Richard J. Leon, in the first ruling in a full trial testing the Supreme Court’s June decision on detainees’ rights, on Thursday ordered the federal government to release five Guantanamo Bay detainees “forthwith.” The judge found, however, that the government had justified the continued imprisonment of a sixth detainee, Belkacem ben Sayah.

The judge, in an unusual added comment, suggested to senior government leaders that they forgo an appeal of his ruling on freeing the five prisoners. While conceding that the government had a right to appeal that part of his ruling, Leon commented that he, too, had “a right to appeal” to leaders of the Justice Department, Central Intelligence Agency and other intelligence agencies, and his plea was that they look at the evidence regarding the five he was ordering released. “Seven years of waiting for our legal system to give them an answer to their legal question is enough,” he commented.

Senior leaders of the government, he went on, will have “more than enough opportunity” to test the novel issues at stake in defending against an appeal of his ruling in the case of ben Sayah. He said he was appealing to those leaders “to end this process” for the five. ...
....
In ruling against the government as to the five detainees, Judge Leon said that the Justice Department and intelligence agencies had relied solely on a classified document from an unnamed source, which he found was not persuasive on the government’s claim that the five had planned to travel to Afghanistan to join in hostile actions against the United States and allied forces. That secret document, which the judge said he could not evaluate for credibility or corroboration because the government had not given him information enabling him to do so, did not convince him that the five had a plan to fight against the U.S. or its allies, or even knew of such a plan. He said he could not be more specific in public, because of the classified nature of the information. (After announcing his ruling, Judge Leon met in private with lawyers for both sides to discuss the information he could not mention in open court.)

The judge said, however, that the government had persuaded him that ben Sayah was “an al Qaeda facilitator” who sought to arrange travel to Afghanistan by others to join in armed hostilities toward U.S. and coalition partners. Applying a “preponderance of the evidence” standard of proof, Leon said that the government had proved “that it was more likely than not that ben Sayah planned to take up arms against the United States, but also planned to facilitate travel of others to do the same.”

He added that there “can be no question that facilitating others to join the fight against the United States in Afghanistan constitutes direct support of al Qaeda in furtherance of its objectives, and that this support is within the definition of ‘enemy combatant’ ” on which the judge was relying .....

http://www.scotusblog.com/wp/judge-orders-five-detainees-freed/

jmm99
11-21-2008, 02:45 AM
As noted in the first SCOTUSblog update below, the order does not contain a number of the judge's remarks about the cases.


Judge orders five detainees freed
Thursday, November 20th, 2008 12:21 pm | Lyle Denniston

UPDATED to 4:30 p.m.

NOTE TO READERS: This post includes a link to the judge’s 14-page ruling. However, that “memorandum order” does not include the judge’s remarks encouraging the government to forgo an appeal of his order to release five captives, his comments about the long delay the detainees faced in getting a legal answer to their challenges, his statements that his ruling would have no precedential effect for other cases, or his suggestion that the Supreme Court had imposed a judicial process on the intelligence-gathering regime. Those presumably will be reflected in the transcript of Thursday’s session, available later. ....

http://www.scotusblog.com/wp/judge-orders-five-detainees-freed/

The order (14 pp., but a 7+MB .pdf file - which I've had problems dl'ing) is here

http://www.scotusblog.com/wp/wp-content/uploads/2008/11/leon-boumediene-order-11-20-2008.pdf

The DoJ statement regarding the decision is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/11/doj-statement-on-leon-11-20-08.pdf

------------------------------------------------------
In two other detainee cases heard today, no decisions were entered.


Today’s detainee case developments
Thursday, November 20th, 2008 4:19 pm | Lyle Denniston
.....
Senior U.S. District Judge Thomas F. Hogan ordered lawyers for Guantanamo detainees to file by next Wednesday their responses t o the Justice Department’s sweeping challenge to the procedures Hogan has crafted for processing 113 habeas cases involving about 200 prisoners. .... The order was issued in a variety of cases, including the leading group of cases (District Court docket 08-442).

A three-judge panel of the D.C. Circuit Court held a 40-minute hearing on the Justice Department’s argument that the Supreme Court decision in Boumediene v. Bush has scuttled the Circuit Court system of civilian review of Pentagon detention decisions. Circuit Judge Judith W. Rogers, who has been skeptical of many government maneuvers on detainee issues, dominated the questioning. The Court did not indicate when it would rule. The question of its jurisdiction to decide Detainee Treatment Act cases is now at issue in Bismullah v. Gates (Circuit docket 06-1197).

http://www.scotusblog.com/wp/todays-detainee-case-developments/

jmm99
11-22-2008, 03:34 AM
Judge Leon’s transcribed remarks on Thursday, in announcing his decision in Boumediene, et al., v. Bush (04-1166), is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/11/leon-transcript-11-20-08.doc

Attorney General Michael B. Mukasey's Wall Street Journal op-ed on the ruling is here.

http://online.wsj.com/article/SB122722814865546291.html

The sub-headline ("Habeas corpus hearings could set terrorists free inside the U.S."), which I assume is from the WSJ and not the AG, is total Bravo Sierra - our non-sensational media srikes again.

----------------------------------------

Judge delays 114 habeas cases
Friday, November 21st, 2008 4:23 pm | Lyle Denniston
....
The federal judge [Senior U.S. District Judge Thomas F. Hogan] coordinating 114 habeas cases, involving some 200 Guantanamo Bay detainees, on Friday lifted temporarily the timelines he had laid down for key filings by one or both sides, effectively delaying most if not all of those cases....
....
The stay will remain in effect, the judge indicated, until he rules on a broad challenge to the procedural framework he has crafted for the cases. The Justice Department wants many of the provisions relaxed or at least modified, or, as an alternative, it wants permission to pursue an immediate appeal to test those provisions in the D.C. Circuit Court.

Two things about the order are unclear: first, how long the delays will be, since the judge has given no indication of when he will rule on the government protest, and, second, whether other District judges who have adopted his management order as is or with alterations will issue similar stays for the cases that are assigned to them. .... (UPDATE: Later Friday, other judges began following Hogan’s lead on the stay question .....).

http://www.scotusblog.com/wp/july-delays-114-habeas-cases/

These and various recent stay orders in the DC courts, Judge Kohlmann's retirement at Gitmo, etc., suggest that most detainee cases will come to a temporary halt until the new administration takes office.

jmm99
11-22-2008, 04:10 AM
Opposition to the DoJ's position on the Uighurs is not limited to the far left. In fact, conservatives have been in the forefront. So, the following is not a surprise.


Conservatives call on Bush to free Muslim Uighurs
Conservatives urge immediate release for 17 Muslim Uighurs held at US naval facility in Cuba
HOPE YEN
AP News
Nov 20, 2008 09:22 EST

A group of conservatives is chastising the Bush administration for refusing to free 17 Turkic Muslims being held without charges at Guantanamo Bay, Cuba, saying their continued detention defies legal principles and "undermines our standing in the world."

The 10 conservatives, including legal scholars and officials who worked for Republican presidents, said the Uighurs — a group of Muslims from China — should be freed immediately because they are no longer considered enemy combatants.
....
The letter was signed by Stephen E. Abraham, a 26-year veteran of military intelligence who played a key role in the "enemy combatant" hearings at Guantanamo Bay before repudiating the process last year; Col. Lawrence B. Wilkerson, who served as chief of staff to former Secretary of State Colin Powell; and Bruce Fein, former associate deputy attorney general in the Reagan administration.
......
Other signers to Thursday's statement are David Keene, chairman of the American Conservative Union, a lobbying group; Richard Epstein, a prominent conservative legal scholar at the University of Chicago; former FBI director William Sessions; Thomas B. Evans Jr., former co-chairman of the Republican National Committee; Mickey Edwards, former chairman of the House Republican Policy Committee; John W. Whitehead, president of The Rutherford Institute; and Don Wallace Jr., chairman of the International Law Institute.

http://wiredispatch.com/news/?id=460648

jmm99
11-25-2008, 03:03 AM
The trial, if it occurs, will start at the end of January.


“Child soldier” trial can go on
Monday, November 24th, 2008 7:48 pm | Lyle Denniston

A federal judge ruled on Monday that a civilian court has no authority to block a military trial on war crimes charges in the case of a Canadian who contended that he was too young to be prosecuted. He must await the trial before making his challenge, the judge decided.

In a 19-page ruling, District Judge John D. Bates denied review at this time on part of the claims by Omar Khadr seeking to challenge his military commission trial, and ruled that the court had no authority to consider another challenge. ....

Khadr was 15 years old at the time of his capture in Afghanistan in July 2002. He was taken to Guantanamo Bay later that year. He has been declared an “enemy combatant” and has been charged with war crimes for his role in a firefight in Afghanistan that left an American soldier dead.

His trial has been scheduled to begin Jan. 26 at Guantanamo, and Judge Bates’ decision clears the way for it — provided the ruling withstands any appeal and that President-elect Barack Obama does not take action to close down the military commission system at Guantanamo. ....

http://www.scotusblog.com/wp/child-soldier-trial-can-go-on/

The judge's opinion & order are here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/11/khadr-ruling-bates-11-24-08.pdf

http://www.scotusblog.com/wp/wp-content/uploads/2008/11/khadr-order-11-24-08.pdf

-----------------------------------
Khadr's three claims, all based on his age when captured, were not decided on their merits. The judge retained jurisdiction pending the MCA trial and all appeals from it, where Khadr must first raise those issues (which are not directly constitutional claiims). After that process is concluded, the habeas case could be resumed.

jmm99
11-26-2008, 07:38 PM
Seems Salim will soon be going home, after making a substantial contribution to US jurisprudence, for good or bad.


Official: Bin Laden's driver heading home to Yemen
Defense official: US to transfer bin Laden's driver from Guantanamo to his home in Yemen
LOLITA C. BALDOR
AP News
Nov 25, 2008 08:27 EST

Former Osama bin Laden driver Salim Hamdan is being transferred from the U.S. detention facility at Guantanamo Bay, Cuba, back to his home country of Yemen, a senior defense official said.

Hamdan was convicted of aiding al-Qaida in August and sentenced to 5 1/2 years in prison. He would be eligible for release in January with credit for time served.

The official, who spoke on condition of anonymity because of the sensitive nature of the matter, said Monday that Hamdan will serve out the remainder of his sentence in Yemen.

Waleed Alshahari, who ovesees Guantanamo Bay issues for the Yemen Embassy in Washington, said he was surprised to learn plans for Hamdan's release because there have been no new negotiation on the release of the 90 or so Yemeni detainees at the prison.

He said any deal over their release likely will come under President-elect Barack Obama's administration.

"It seems the new administration wants to close this prison, so so there will be negotiations with them," he said. Security has been a roadblock. The U.S. is concerned the detainees will be released as soon as they are returned to Yemen. Yemeni and U.S. officials agree there should be a new, secure rehabilitation center built in Yemen but officials there say they can't afford it and have asked the U.S. to build it.

Alshahari said he believes the Obama administration will seek a deal with a neighboring country to help pay for the project. .....

http://wiredispatch.com/news/?id=466158

Quite a few chapters in this saga seem to be drawing to a close, in one way or the other. Wouldn't be unhappy if the whole book would disappear with 9/11 never happening, but that is not to be.

jmm99
12-06-2008, 01:44 AM
Al-Marri, a legal resident alien, was seized at his home in Peoria, Ill., where he was a graduate student. He later was charged under the US Criminal Code, on the basis of a government official’s declaration that al-Marri had come to the US the day before the Sept. 11, 2001, terrorist attacks to become a part of a “sleeper cell” to carry out terrorist actions inside the US. So far, so good.

He then was pulled out of the Federal court system on President Bush’s orders; and the criminal charges were dropped. He has been held since June 2003 in military custody, most of that time at the U.S. Navy brig in Charleston, S.C., solely on the basis of a presidential declaration that he is an “enemy combatant.” Then, the legal arguments began.


Court to rule on domestic detention
Friday, December 5th, 2008 12:58 pm | Lyle Denniston
.....
Taking on another historic constitutional fight over war-on-terrorism powers, the Supreme Court agreed on Friday to rule on the President’s authority to order the seizure in the U.S. and long-term detention of an individual suspected of war crimes but not charged. The Court agreed to hear, and probably will decide by next summer, the case of Al-Marri v. Pucciarelli (08-368), involving the only individual captured inside the U.S. and still being held in this country for an indefinite period, with no sign of any criminal prosecution.

The government’s brief is not due until after President-elect Barack Obama takes office, so his administration will have the option of changing the government’s present position in defense of the detention authority. At the earliest, the government’s brief would not be filed for 75 days — that is, until about Feb. 18. The Court did not expedite the briefing schedule. The case is now scheduled for argument in late March.
.....,
The question at issue is: “Does the Authorization for Use of Military Force (AUMF), 115 Stat. 224, authorize — and if so does the Constitution allow — the seizure and indefinite military detention of a person lawfully residing in the United States, without criminal charge or trial, based on government assertions that the detainee conspired with al Qaeda to engage in terrorist activities?”

http://www.scotusblog.com/wp/court-to-rule-on-domestic-detention/#more-8363

The question, more simply stated, is whether Ex Parte Milligan (habeas granted to a US citizen under similar facts) should be extended to a legal resident alien.

While both parties, and several amici, have filed briefs for and against review, little point exists right now in reviewing the legal arguments until the Obama DoJ decides what to do with this and other cases.

jmm99
12-08-2008, 09:54 PM
I guess I am not surprised - since KSM and the others have made no bones about wanting martyrdom. So, death by lethal injection is as good a way as any to reach that goal.


Page last updated at 19:55 GMT, Monday, 8 December 2008
Top 9/11 suspects to plead guilty

Alleged 9/11 mastermind Khalid Sheikh Mohammed and his four co-defendants have said they want to plead guilty at a pre-trial hearing at Guantanamo Bay.

But Mr Mohammed said he would postpone entering his plea until an investigation into the mental state of two of his co-defendants was complete.

Military Judge Col Stephen Henley had ordered the probe into whether the two were mentally competent to stand trial.

The five men face death sentences if convicted of roles in the 2001 attacks.

Correspondents say no trial date has been set and there seems little chance that one will begin before President-elect Barack Obama takes office. ....

http://news.bbc.co.uk/2/hi/americas/7770856.stm

jmm99
12-09-2008, 07:34 PM
lurking through a parallel universe, which you can find by Googling, KSM + "guilty plea", which generated about 1200 hits.

What is being argued is that the KSM five cannot plead guilty because their detention, etc. (the principal "etc." being torture) taints any guilty plea. So, the argument runs, try them so all the evidence can come out. The proponents of this argument are really upset that they (the proponents) will not have "their day in court".

Fascinating.

Ken White
12-09-2008, 08:29 PM
The mind numbing illogic and desire for ideological vindication from both sides is sort of comical but it's unfortunately a little beyond scary. Where is Darwin when we need him...

jmm99
12-09-2008, 09:28 PM
(perhaps) illogical from the long-term survival prospects of those drum-beaters who have a far-left ideological perspective. It strikes me that they would not last very long in an extreme Salafist controlled environment.

I know there have to be other reasons for it, but it still puzzles me how the far-left were not the ones to take up the cudgel against AQ.

Tom Odom
12-12-2008, 06:08 PM
released by Senators Levin and McCain


Senate probe blames top Bush officials for abuses (http://www.mcclatchydc.com/227/story/57631.html)

By Roy Gutman and Jonathan S. Landay | McClatchy Newspapers

WASHINGTON — Top officials — including former Defense Secretary Donald H. Rumsfeld and Air Force Gen. Richard Myers, the former chairman of the Joint Chiefs of Staff — were responsible for the use of "abusive" interrogation techniques on detainees at Guantanamo Bay, in Afghanistan and at the Abu Ghraib prison in Iraq, a bipartisan Senate report concluded Thursday.

The long-awaited Senate Armed Services Committee report bluntly refuted the Bush administration's repeated claims that the abuses, which helped fuel the Iraq insurgency and damaged America's reputation around the world, were the work of a few low-level "bad apples."

Ken White
12-12-2008, 06:33 PM
was abysmally stupid. Not because it really said anything illegal but due to the fact would be misconstrued and abused as it wandered down the chain of command. So, yes, it was dumb -- but not criminal.

In the interrogations at Guantanamo and in both theaters, abuses occurred. there were of two natures; MG Miller and others pushing the envelope and LTG Sanchez order to 'get more intel' -- which he knew or should have known would lead to excesses. In his case not only dumb but, IMO, marginally criminal.

Then there are the action of individuals at Guantanamo and overseas to include Abu Gharaib (where 1/82 was reporting abuses BEFORE it went public and Sanchez' Hq ignored them) -- those were individual failures and, more importantly, failure of the Company and Battalion chains of command. They were criminal failures and some were properly punished, other more senior people were allowed to slide -- wrongly IMO; still they were criminal acts with respect to the UCMJ and arguably other federal statutes (which is irrelevant).

Without seeing the classified report, no way to tell how totally in sync with my thoughts it is...

However, there is no doubt that the comments of Senator Levin are partisan BS and that Mcclatchy released a political hit piece. Doesn't say much for either of them and neither does the nation a favor.

Tom Odom
12-12-2008, 06:46 PM
Ken,

While I agree on your points on Levin, note that McCain was also quoted as below:



The report "details the inexcusable link between abusive interrogation techniques used by our enemies in violation of the Geneva Convention and interrogation policy for detainees in U.S. custody. These policies are wrong and must never be repeated," said McCain, a former prisoner of war in North Vietnam.

What bothers me about McCain's posture in this was he shifted during his run for President and now he shifted back. I agree with his position here; I don't much care for the seesaw. That too is harmful.

Tom

Ken White
12-12-2008, 07:15 PM
What bothers me about McCain's posture in this was he shifted during his run for President and now he shifted back. I agree with his position here; I don't much care for the seesaw. That too is harmful.Couldn't agree more -- on both counts...

jmm99
12-17-2008, 01:47 AM
I'd not term this a major victory, since it simply limits some aspects of the discovery process before merits hearings to be held before a number of different judges.


Major victory for U.S. in detainee cases
Tuesday, December 16th, 2008 7:18 pm | Lyle Denniston
.....
Senior District Judge Thomas F. Hogan, who is coordinating 113 cases involving some 200 detainees, yielded to strongly worded government demands on most of the key points in dispute over how those cases are to unfold in District Courts in Washington. Hogan agreed to revise an order he had issued about six weeks ago on the framework for other judges to follow as habeas cases moved to actual trials. The revisions went considerably further than Hogan had hinted at a hearing last week.
.....
Here are the most significant changes Hogan made:

** The government now will not have to supply to detainees themselves any “substitute” version of classified information. Detainees’ lawyers will be allowed to see classified information, if properly cleared, but they cannot tell it to detainees to seek responses to it. The government may also ask a judge to excuse it from giving secrets even to cleared attorneys for detainees.

** The government does not have to conduct a wide search throughout federal agencies for information it has about detainees that could help their lawyers challenge the reasons for further captivity. All that must be turned over is evidence examined by government lawyers who prepared the reasons for detention or evidence that was gathered by the government in preparing for the habeas cases.

** The government will not have to disclose to detainees any documents or other materials in government possession that are mentioned in any habeas file by the government, unless the government actually relies on the document to justify detention. That includes statements that a detainee personally may have made. This is significantly narrower than the disclosure requirement in the Nov. 6 order.

http://www.scotusblog.com/wp/major-victory-for-us-in-detainee-cases/#more-8410

Judge Hogan's order is here.

http://www.scotusblog.com/wp/wp-content/uploads/2008/12/hogan-cmo-order-12-16-08.pdf

I think Lyle is reading the order in a light most favorable to the government - and that there will be some argument about its scope. The order definitely removes any requirement that it search all of its files (anywhere, anyplace) for information concerning Ahmed - which, even if once in some file, may now be lost or misplaced. In short, no Easter egg hunt.

As I read the amendment, the government will be required to turn over all exculpatory evidence about Ahmed it has found in the files it has reviewed concerning Ahmed, or concerning any other habeas case or Gitmo case (e.g., the MCA cases). Usual limits on classified data apply.

jmm99
12-18-2008, 05:30 AM
The "winding down" item is the following:


Three detainees sent to Bosnia
Tuesday, December 16th, 2008 12:28 pm | Lyle Denniston
...
Three of the Guantanamo Bay detainees ordered released by a federal judge this month have been sent to Bosnia, where they had been living before being captured and put in indefinite detention by the U.S. military. They are part of a group of five who won their release in a decision last month by U.S. District Judge Richard J. Leon.

http://www.scotusblog.com/wp/three-detainees-sent-to-bosnia/

This event is not too surprising since DoJ, in these cases and the Uighurs cases, conceded it would not object to release to a foreign country willing to take detainees after they are found to be non-combatants.

------------------------
The winding up event was SCOTUS' brief order on Monday remanding the Rasul case to the DC Circuit for reconsideration - article and analysis here:


Court orders new review on torture, allows tobacco lawsuits
Monday, December 15th, 2008 10:09 am | Lyle Denniston
...
The Supreme Court on Monday ordered the D.C. Circuit Court to reconsider a ruling rejecting claims of torture and religious bias against detainees at Guantanamo Bay, Cuba. The Circuit Court is to take into account the Justices’ June 12 ruling on detainees’ rights in Boumediene v. Bush (06-1195). The Circuit Court had issued its ruling in Rasul, et al., v. Myers, et al., on Jan. 11 — five months before the Boumediene ruling came down. The Supreme Court, acting Monday in case 08-235, vacated the lower court’s ruling and told it to look again at the claims of four Britons who formerly were held at the U.S. military prison at Guantanamo.....

http://www.scotusblog.com/wp/court-orders-new-review-on-torture/


Analysis: Crucial new test of Boumediene
Wednesday, December 17th, 2008 7:52 pm | Lyle Denniston
....
Analysis

Taking on a task newly assigned to it by the Supreme Court, the D.C. Circuit Court in the next few weeks will be faced with answering a constitutional question of historic dimensions: what part of the Constitution extends to Guantanamo Bay, and to the foreign nationals held prisoner there? This is a crucial test of what the Supreme Court meant in its June 12 ruling in Boumediene v. Bush.

Here is how that inquiry is likely to proceed: on about Jan. 9 (unless the Court shortens the time), the Justices will formally put into effect the order they issued on Monday to the Circuit Court to look again at the Boumediene ruling. The specific task will be to apply that ruling to the claims of four Britons that they were tortured and suffered religious discrimination at Guantanamo when they were there.

The first step by the Circuit Court is likely to be a call for new written briefs on that issue, on a timetable that may run at least into February. The Circuit Court may then hold a hearing on it, before beginning deliberating on a decision.

This timetable has a special significance because it means that the new review will take place after Barack Obama has become President, and it will be his Justice Department that will file the government’s views in the case. Whether the new administration will abandon the Bush Administration restrictive view on the rights of Guatanamo detainees is ucnertain at this point, but it seems a fair prospect. ....

http://www.scotusblog.com/wp/analysis-crucial-new-test-of-boumediene/#more-8416

The message to the lower Federal courts, which we have seen elsewhere, is "let's wait to see what positions the new administration will take."

jmm99
12-31-2008, 07:11 PM
One of them (Sliti) expands the definition of enemy combatant beyond that of a person who actually bore arms in the field (Al Alwi). Sliti went through AQ training and went to Astan, but was not involved in combat operations.


Judge rules against two detainees
Tuesday, December 30th, 2008 6:12 pm | Lyle Denniston
...
U.S. District Judge Richard J. Leon ruled on Tuesday that two Guantanam Bay detainees — nationals of Yemen and Tunisia — must remain prisoners of the U.S. military, finding that the government has proved that each is an “enemy combatant.” In the most significant of the two separate rulings, the judge concluded that the government does not have to prove that a detainee uses arms against U.S. forces or against forces of its coalition partners, in order to fit the judge’s definition of an enemy associated with Al Qaeda or Taliban. ....

http://www.scotusblog.com/wp/judge-rules-against-two-detainees/

The non-classified order concerning the Yemeni captive, Moath Hamza Ahmed Al Alwi, is here (http://www.scotusblog.com/wp/wp-content/uploads/2008/12/al-alwi-order-12-30-08.pdf).

The non-classified order concerning the Tunisian prisoner, Hisham Sliti, is here (http://www.scotusblog.com/wp/wp-content/uploads/2008/12/sliti-order-12-30-08.pdf).

jmm99
01-07-2009, 02:56 AM
Four habeas petitions from Bagram detainees will be heard tomorrow before DC District Judge John Bates.


Does Boumediene reach to Bagram?
Sunday, January 4th, 2009 6:24 pm | Lyle Denniston
....
Since June, and the Supreme Court’s ruling in Boumediene v. Bush, it has been clear that foreign nationals held as terrorism suspects by the U.S. military at Guantanamo Bay, Cuba, have a constitutional right to challenge their captivity in U.S. courts in Washington. On Wednesday, a federal judge will begin exploring whether Boumediene’s result reaches another military prison where the U.S. now holds perhaps three times the number of detainees still left at Guantanamo Bay — the “Bagram Theater Internment Faciltliy” at an airfield some 40 miles outside of Kabul, Afghanistan.
...
In ordering a hearing for 10 a.m. Wednesday, District Judge John D. Bates made clear he would be focusing on whether his court has any authority to rule on the Bagram detainee claims. He told lawyers not to expect to spend much time on any other issue in the cases.

http://www.scotusblog.com/wp/does-boumediene-reach-to-bagram/#more-8470

The fact situation here precludes automatic application of either SCOTUS decision in Boumediene v. Bush or Munaf v. Geren.

Munaf found jurisdiction because the petitioners were US citizens (the well-established nationality jurisdiction - all justices agreed).

Boumediene (5-4) found territorial jurisdiction, in effect, by considering Gitmo to be a US territory.

Bagram, under no stretch, can be considered a US territory; though it might be considered US property. This is the first round in a case which will not go away - eventually SCOTUS will have consider the rules for battlefield detainees under GCs Common Article 3. No timetable was given for issuance of the decision.

jmm99
01-07-2009, 09:13 PM
McClatchy summarizes 4 DoJ appointments; three will have some impact on these "War Crimes" cases, here (http://www.mcclatchydc.com/227/story/59012.html).


Posted on Monday, January 5, 2009
Obama's Justice nominees signal end of Bush terror tactics
By Greg Gordon | McClatchy Newspapers

WASHINGTON — In filling four senior Justice Department positions Monday, President-elect Barack Obama signaled that he intends to roll back Bush administration counterterrorism policies authorizing harsh interrogation techniques, warrantless spying and indefinite detentions of terrorism suspects.

The most startling shift was Obama's pick of Indiana University law professor Dawn Johnsen to take charge of the Office of Legal Counsel, the unit that's churned out the legal opinions that provided a foundation for expanding President George W. Bush's national security powers. .....

The article provides most background on Dawn Johnson, who will take over at OLC (Office of Legal Counsel and source of the Yoo memoes). Two 2008 statements by her are here (http://judiciary.senate.gov/pdf/08-04-30Johnsen_Dawn_testimony.pdf) and here (http://www.slate.com/blogs/blogs/convictions/archive/2008/04/03/outrage-at-the-latest-olc-torture-memo.aspx).

The person in overall charge of the habeas cases will be Tom Perrelli, counsel to Clinton Attorney General Janet Reno from 1997 to 1999, as the associate attorney general who oversees civil matters (which is what habeas petitions are considered). He is best known as a media lawyer - e.g., here (http://www.jenner.com/people/bio.asp?id=306) and here (http://news.cnet.com/8301-13578_3-10133425-38.html).

Presenting DoJ's position before SCOTUS, with influence on DC Circuit appeals, will be Elena Kagan, the dean of the Harvard University Law School and a former Clinton White House aide, as solicitor general. Her Wiki is here (http://en.wikipedia.org/wiki/Elena_Kagan).

jmm99
01-08-2009, 02:37 AM
The Bagram habeas hearing (http://www.scotusblog.com/wp/analysis-some-overseas-extension-of-habeas/) ended with the judge requesting more information from the DoJ.


Analysis: Some overseas extension of habeas?
Wednesday, January 7th, 2009 4:45 pm | Lyle Denniston
.....
UPDATE 6:40 p.m. After Wednesday’s hearing, Judge John D. Bates ordered the government to supply, by Jan. 16, information on how many detainees are at Bagram Air Base, how many were captured elsewhere, and how many are Afghan citizens — the last two points apparently bearing on issues the judge had raised at the hearing. [order is here (http://www.scotusblog.com/wp/wp-content/uploads/2009/01/bates-order-jan-7-09.pdf)]

Analysis

Voicing some concern over the government creating a “black hole” for detainees in a “law-free zone” at an overseas military base, a federal judge hinted on Wednesday that he may allow some of the prisoners the U.S. holds in Afghanistan to file court cases to test their captivity.
....
Bates, though, did indicate that he would approach cautiously the issue of granting habeas rights for anyone now at a U.S. military prison at Bagram. Holding a hearing on whether the right to bring a habeas challenge, recognized by the Supreme Court last June in Boumediene v. Bush, extends to Bagram, the judge seemed to grow impatient with a lawyer for detainees who asked for a sweeping expansion of habeas rights.

“You seem to be reserving the position that anywhere [detainees] are held, they would have habeas privileges,” the judge commented to Stanford law professor Barbara J. Olshansky She told Bates that, while she was seeking habeas rights only for the four prisoners involved in the cases now before him, “there can’t be any place in the world where we can keep people without any due process.”

The judge, however, said: ”I don’t think the Supreme Court in Boumediene was intimating that anywhere detainees are held, they have habeas rights. That was not the kind of analysis it made.” The case, he said, was decided on very specific grounds, and left much to be decided by lower courts later. Any ruling that extended habeas everywhere, Bates added, “would write off the books” the six-factor test the Supreme Court laid down last June for determining the scope of habeas.

Seems clear that Judge Bates is not going to be impressed with a strict territorial argument. Still, the Bagram cases are directly on point with Johnson v. Eisentrager, 339 U. S. 763 (1950), which denied habeas to German detainees held in a US prison in Germany.

The information requested by the judge


from order
.... (1) the number of detainees held at Bagram Air Base; (2) the number of Bagram detainees who were captured outside Afghanistan; and (3) the number of Bagram detainees who are Afghan citizens.

suggests part of his decision will hinge on whether Bagram is being used as a local prison (largely for Afghans) or as global dump (cf., Gitmo).

The judge was concerned with a shift in the DoJ's position post-20 Jan:


As the hearing neared a close, with O’Quinn making a brief rebuttal, Judge Bates wondered whether the cases would be impacted by the beginning of President-elect Obama’s administration. “Should I have any concern that there will be a new regime responding to these issues in 13 days?” he asked Quinn, noting that “from the top” — meaning Barack Obama himself — there had come word that Guantanamo would be closed “Is there a possibility of a refined perception regarding these issues?” the judge asked.

O’Quinn said he could only speak for the U.S. government on this day, and its position was that habeas does not extend to prisoners held at Bagram airfield. “I can’t get into the head of the transition team,” the Justice Department lawyer said. He said that, as far as military operations were concerned, “I would be surprised if the incoming administration would take the position that Bagram is to be superintended by the courts.”

Bates said he would work to reach a decision “in what I hope is a reasonable time period.”

My bet would be in a month or two - with a post-20 Jan order allowing the option of added briefing by DoJ.

jmm99
01-09-2009, 07:09 PM
The DC Circuit panel in Bismullah v Gates voided the process of direct DTA review by the Circuit Court and remitted its detainees to the DC District habeas remedy. Lyle's article is here (http://www.scotusblog.com/wp/one-challenge-route-closed-to-detainees/).


One challenge route closed to detainees
Friday, January 9th, 2009 10:39 am | Lyle Denniston
.....
The D.C. Circuit Court on Friday closed one civilian court channel that Guantanamo Bay detainees had used to challenge their confinement, shutting down perhaps 175 pending cases in that court. The three judges on the panel were unanimous in accepting the government’s argument that the review process created under the Detainee Treatment Act of 2005 has been scuttled, even though that law is still on the books. ....

While Lyle feels that the decision, which is here (http://www.scotusblog.com/wp/wp-content/uploads/2009/01/06-1197-1158056.pdf), might limit the scope of the habeas cases, I tend to disagree. The distrct judges have limited those cases (already decided) to the enemy combatant issue; and have refused to turn them into referenda on Gitmo.

The Circuit opinion - which rests on the concept of the court deciding what Congress would have done if Congress had thought of doing what it didn't do (think I got that right) - expresses no opinion on what the DC District should do with habeas cases (pp.2-3).


GINSBURG, Circuit Judge: The petitioners, detainees held in military custody at Guantanamo Bay, each filed a petition, pursuant to the Detainee Treatment Act (DTA), for review of the determination by a Combatant Status Review Tribunal (CSRT) that he is an “enemy combatant.” The Government contends we do not have jurisdiction over the detainees’ petitions because the provision of the DTA that grants us subject matter jurisdiction cannot be severed from the provision eliminating habeas corpus jurisdiction, which the Supreme Court held unconstitutional in Boumediene v. Bush, 128 S. Ct. 2229 (2008). We agree and therefore dismiss these petitions for lack of jurisdiction; the petitioners are remitted to their remedy under the habeas corpus statute,28 U.S.C. § 2241.

My thought is that SCOTUS in Boumediene was careful to limit its holding of unconstitutionality to a specific subsection of a statute. Once a more generalized approach to unconstitutionality is taken (as in this opinion), other judges may feel free to run with the ball.

In any event, the new DoJ team will be calling the shots on how these cases will be handled.

jmm99
01-15-2009, 06:27 PM
Richard Leon is earning himself the title of "The Decider". As Lyle Denniston points out here (http://www.scotusblog.com/wp/detainee-release-ordered/), he has decided 9 detainee cases so far.


Detainee’s release ordered
Wednesday, January 14th, 2009 5:59 pm | Lyle Denniston
....
In the first Guantanamo Bay prisoner case where detention was based primarily upon claims of other detainees, U.S. District Judge Richard J. Leon on Wednesday found those claims unreliable and so ordered the release of a Saudi Arabian who is a citizen of Chad — Mohammed El Gharani (who also uses the name Yousuf Al Karany). ....
....
.... The U.S. government, in Judge Leon’s court, had relied mainly upon statements from two other Guantanamo prisoners who claimed that Al Gharani had stayed at a guesthouse in Afghanistan that was affiliated with the Al Qaeda terrorist network, had been trained at Al Qaeda military camps, had fought against U.S. and allied forces at a battle at Tora Bora in Afghanistan, and was a member of a terrorist cell in London.

Each of those contentions came from other detainees, Judge Leon said, and the judge found the statements inconsistent or unverified, and had no support from other evidence.

The judge also rejected a separate government claim, based on unrevealed classified information, that Al Gharani had served as a courier for several high-ranking Al Qaeda members. This information, Leon found, was “woefully deficient.”
.....
Judge Leon, who is moving more rapidly than other District judges on detainee cases, has now ordered the release of six prisoners and the continued detention of three others.

The opinion is here (http://www.scotusblog.com/wp/wp-content/uploads/2009/01/leon-ruling-1-14-08.pdf).

The key points of the ruling are first the legal test for "enemy combatant" ("unlawful combatant", which I prefer, is the same thing):


(opinion, p.5)
The following definition of "enemy combatant," previously adopted by this Court in the Boumediene cases, governs the proceedings in this case:

An "enemy combatant" is an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

Boumediene v. Bush, 2008 WL 4722127, at *2 (D.D.C. Oct. 27, 2008).

The proof test is a preponderence of the evidence (50 yds + a nose).

The second point is Judge Leon's analysis (pp.6-10) of the DoJ's case in chief, which consisted largely of hearsay statements made by other Gitmo detainees - note: hearsay evidence is permitted in these proceedings, but its weight is then considered by the court (0% to 100% accuracy scale, in effect). He concluded (pp.10-11):


Thus, notwithstanding the substantial and troubling uncertainties regarding petitioner's conduct and whereabouts prior to his detention by Pakistani forces, the Government has failed to establish by a preponderance of the evidence that petitioner el Gharani was "part of or supporting" al Qaeda or the Taliban prior to or after the initiation of force by the U.S. in 2001. Simply stated, a mosaic of tiles bearing images this murky reveals nothing about the petitioner with sufficient clarity, either individually or collectively, that can be relied upon by this Court. Accordingly, the Court must, and will, GRANT the detainee's petition for a writ of habeas corpus and order the respondents to take all necessary and appropriate diplomatic steps to facilitate his release forthwith.

Note that Judge Leon specifically ordered diplomatic steps to be taken. See post #34 here (http://council.smallwarsjournal.com/showthread.php?p=64329#post64329), where the use of diplomacy to effectuate release was suggested in another habeas case.

This case also is another instance where evidence was fouled up - here the unique set of classified AQ dispatches that 8 other different detainees might have been carrying !


(opinion p.9)
Next, the Government contends that petitioner el Gharani was a courier for certain senior al Qaeda operatives. Once again, this allegation, if proven, would be strong evidence of enemy combatancy. Unfortunately for the Government, however, the classified information it relies upon - which did not include statements of any other detainees - was woefully deficient to establish this point by a preponderance of the evidence. Besides having internal inconsistencies, the Government's evidence raises serious questions about whether certain alleged al Qaeda correspondence was even on the person of the petitioner as opposed to one of eight other individuals who were turned over to U.S. authorities at Kandahar at the same time as petitioner. Accordingly, this allegation is also not established.

This illustrates what a preponderence of the evidence means. There is a 1/9th chance that el Gharani was the courier - which is not 50% + a nose.

The question is WTF was DoD and/or DoJ doing here. The dispatches exist, but which detainee they were taken from has been lost or never was recorded. Since hearsay is allowed, a simple entry that "these documents were found on detainee X" would have been enough - in fact, that would come in under the business entry exception to hearsay in a normal criminal case. Sheer incompetence in this instance.

jmm99
01-18-2009, 02:38 AM
Besides the 4 named in post #162 above - and Mr. Holder, 5 more middle level appointee have been named. Their bios are linked here (http://legaltimes.typepad.com/blt/2009/01/more-names-emerge-for-key-doj-slots.html) and here (http://legaltimes.typepad.com/blt/2009/01/obama-to-nominate-kris-to-head-national-security-division.html).

Of interest to these cases is the slated appointment of Neal Katyal, who successfully argued the landmark detainee rights case Hamdan v. Rumsfeld before the Supreme Court, as the principal deputy solicitor general, the office’s No. 2 spot.

Based on the bios, you can judge qualifications, experience, political slant, etc.

As a generalization, many of these folks (like Mr. Holder) held lower-level positions in AG Reno's DoJ.

jmm99
01-21-2009, 08:02 PM
On the DC District front, some 200 habeas cases are now pending. In several of them, DoJ moved for a 2-week continuence, which was granted. One logically would expect that similar motions will be filed in other cases as hearings are scheduled - while the Obama DoJ attempts to get its act together.

On the Gitmo front (besides the PR EO requiring it to be closed down within the year), a 120-day continuence was sought and granted in 5 cases with similar action expected in some 15 others.


Obama starts acting on detainee cases
Wednesday, January 21st, 2009 10:44 am | Lyle Denniston
....
The Obama Administration, in its first move to shape the civilian courts’ handling of Guantanamo Bay detainee cases, on Tuesday asked for — and received — a delay in a scheduled hearing in two of those cases. In a filing made soon after the new President was sworn in, the Justice Department asked a U.S. District Court judge for a two-week postponement in cases involving three detainees.
....
Although the motion was confined to just three cases out of some 200 now pending, the reason for the delay appeared likely to apply to other cases as well. These cases appeared to have been chosen at this point because a hearing had been scheduled for 2 p.m. Wednesday.
....
President Obama on Tuesday ordered military proseuctors to ask for a 120-day postponement in all cases “that had been referred to military commission.”.... A military judge on Wednesday granted the request, halting proceedings in the case involving five prisoners who have been accused of war crimes for their alleged roles in the Sept. 11, 2001, terrorist attacks on the U.S. The Pentagon had told the judge it would be seeking similar delays in “all pending military commissions cases,” reaching another 15 individuals. ....

http://www.scotusblog.com/wp/obama-starts-acting-on-detainee-cases/

In the DC District case, the motion and order - unopposed by detainees' counsel - yield no clues as to what the future DoJ position will be in these cases (links in Lyle's article).

The Gitmo request (http://www.aclu.org/pdfs/safefree/usvksm_continuance.pdf) (in the KSM Five case) is more expressive, but not an icon for tea leaf readers.


The Secretary of Defense issued his order to the Chief Prosecutor in order to provide the Administration sufficient time to conduct a review of detainees currently held at Guantánamo Bay, Cuba, to evaluate the cases of detainees not approved for release or transfer to determine whether prosecution may be warranted for any offenses those detainees may have committed, and to determine which forum best suits any future prosecution.

I am most curious to see how the Obama administration will handle the KSM Five.

jmm99
01-22-2009, 02:14 AM
in referring to your Gitmo EO as a "PR EO". The draft, now being floated and discussed here (http://www.scotusblog.com/wp/obamas-tentative-plan-for-guantanamo/), has some teeth - and also some tea leaves.


Obama’s tentative plan for Guantanamo
Wednesday, January 21st, 2009 7:01 pm | Lyle Denniston
....
President Obama is considering a plan, with three distinct stages, for closing the U.S. military detention camp at Guantanamo Bay, Cuba. A draft of an Executive Order circulating in Washington on Wednesday revealed a plan for, first, a full-scale review of the case of each of the remaining 245 or so prisoners; second, relocation of the prisoners either to the U.S. or to foreign countries with full release for some, and, third, prosecution of some — though not necessarily in regular civilian courts — for terrorist-related crimes.
....
The draft ... at one point: “Merely closing the facility without promptly determining the appropriate displosition of the individuals would not adequately serve [national security and foreign policy intersts and interests of justice]. To the extent practicable, the prompt and appropriate disposition of the individuals should precede the closure of the detention facilities at Guantanamo.” ....

So, the draft begins the process required to reduce the general principle ("Close Gitmo") to practice - what to do with some 250 legal cases. The draft does not address four other areas of interest (part of Lyle's much longer analysis - and which have been reported here in various posts):


Four other aspects of the draft may cause concern among detainees’ lawyers and human rights groups.

First, it made no mention whatever of the situation of about 650 detainees now being held by the U.S. military at a prison at Bagram airbase in Afghanistan — an issue also pending in U.S. District Court;

second, it made no mention of the fate of the one detainee who was captured inside the U.S. and remains confined within the country — a detainee whose case is now awaiting review in the Supreme Court;

third, it raised a question whether “it is feasible to prosecute” any crimes detainees may have committed under regular courts — the civilian courts created under the Constitution’s Article III — and thus opened the possibility of proceedings where the accused may have fewer rights than in those courts; and,

fourth, it left open for future decision what might happen to detainees who could not be released or transferred to other countries, and could not be prosecuted and yet would not be deemed free to go. It suggested a possibility that some detainees might be brought to “facilities within the United States,” and suggested possible new legislation, but went no further.

One has to start somewhere - this EO does that.

----------------------------------
Some comments on the draft EO, which is here (http://www.aclu.org/pdfs/safefree/gitmo_draft_order.pdf).

The relevant legal references (besides the Constitution and Federal statutes also referenced) are these:


Section 1. Definitions. As used in this order:

(a) “Common Article 3” means Article 3 of each of the Geneva Conventions.

(b) “Geneva Conventions” means:

(i) the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949 (6 UST 3114);

(ii) the Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949 (6 UST 3217);

(iii) the Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949 (6 UST 3316); and

(iv) the Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949 (6 UST 3516).

Note that this is a conservative legal positions (without attempting to incorporate the Additional Protocals and international "humanitarian" law which have not been adopted by the US). Cf., old FM 27-10.

It also emphasizes Common Article 3 of the 4 GCs, and requires its application:


Sec. 6. Humane Standards of Confinement. No individual currently detained at Guantánamo shall be held in the custody or under the effective control of any officer, employee, or other agent of the United States Government, or at a facility owned, operated, or controlled by a department or agency of the United States, except in conformity with all applicable laws governing the conditions of such confinement, including Common Article 3 of the Geneva Conventions. The Secretary of Defense shall immediately undertake a review of the conditions of detention at Guantánamo to ensure full compliance with this directive. Such review shall be completed within 30 days and any necessary corrections implemented immediately thereafter.

I have no problems with that since that has been my position here from the git go (AQ-Taliban detainees are CA 3 detainees, pure and simple).

The DoJ is given some primacy in conducting the required file review:


Sec. 4. Immediate Review of All Guantánamo Detentions.

(a) Scope and Timing of Review. A review of the status of each individual currently detained at Guantánamo (“Review”) shall commence immediately.

(b) Review Participants. The Review shall be conducted with the full cooperation and participation of the following officials:

(1) the Attorney General, who shall coordinate the Review;

(2) the Secretary of Defense;

(3) the Secretary of State;

(4) the Secretary of Homeland Security;

(5) the Director of National Intelligence;

(6) the Chairman of the Joint Chiefs of Staff; and

(7) other officers or full-time or permanent part-time employees of the United States, including employees with intelligence, counterterrorism, military, and legal expertise, as determined by the Attorney General, with the concurrence of the head of the department or agency concerned.

This process makes sense because the cases which are immediately in need of it are the DC District habeas cases - and the MCA cases at Gitmo have been halted.

The future of the MCA cases is in doubt:


Sec. 7. Military Commissions. The Secretary of Defense shall immediately take steps sufficient to ensure that during the pendency of the Review described in section 4 of this order no charges are sworn, or referred to a military commission, under the Military Commissions Act of 2006, Pub. L. 109-366, and the Rules thereto, and that all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered, and all proceedings pending in the United States Court of Military Commission Review, are halted.

While there have been problems with application of the MCA process in some areas (which I have acknowledged), I have felt that the process could be salvaged. E.g., the Hamdan trial was an example of due process properly applied - even though some (on each end of the spectrum) disliked the result.

Fve specific actions required by the draft will be discussed in a part 2.

jmm99
01-22-2009, 02:47 AM
The review process, in Section 4(c) requires five actions to be taken - and the probable consequences are suggested by some of them. In order, with some comments:


(1) Consolidation of Detainee Information. The Attorney General shall, to the extent reasonably practicable, and in coordination with the other Review participants, assemble all information in the possession of the Federal Government that pertains to any individual currently detained at Guantánamo and that is relevant to determining the proper disposition of any such individual. All executive branch departments and agencies shall promptly comply with any request of the Attorney General to provide information in their possession or control pertaining to any such individual. The Attorney General may seek further information relevant to the Review from any source.

Why was this not done 5 or more years ago ? It seems quite conceivable to me that the 60 or so released detainees who went back to their old ways, may not have been released if all the evidence relevant to each was assembled into a complete dossier. In any event, this provision is aimed at correction of a problem that has afflicted a number of cases.


(2) Determination of Transfer. The Review shall determine, on a rolling basis and as promptly as possible with respect to each individual currently detained at Guantánamo, whether it is possible to transfer or release the individuals consistent with the national security and foreign policy interests of the United States and, if so, whether and how the Secretary of Defense may effect their transfer or release on appropriate terms and conditions. The Secretary of Defense, the Secretary of State, and, as appropriate, other Review participants shall work to effect promptly the release or transfer of all individuals for whom release or transfer is possible on such terms and conditions.

This provision should comfort the Uighurs, the few others where DC judges have ordered release, and those detainees who are sheep and not goats. Note that "appropriate terms and conditions" would suggest something of a parole procedure.


(3) Determination of Prosecution. In accordance with United States law, the cases of individuals detained at Guantánamo not approved for release or transfer shall be evaluated to determine whether the Federal Government should seek to prosecute the detained individuals for any offenses they may have committed, including whether it is feasible to prosecute such individuals before a court established pursuant to Article III of the United States Constitution, and the Review participants shall in turn take the necessary and appropriate steps based on such determinations.

This adds nothing new (in the sense that Article III Federal courts always have been an option); but does suggest that the Federal criminal process might be used. There are pros and cons on this - consider trying the KSM Five (who are not going to get off the hook - it seems that they do not want to get off the hook, but would love a trial where they could present their agitprop).


(4) Determination of Other Disposition. With respect to any individuals currently detained at Guantánamo whose disposition is not achieved under subsections (c)(2) or (c)(3) of this section, the Review shall select lawful means, consistent with the national security and foreign policy interests of the United States and the interests of justice, for the disposition of such individuals. The appropriate authorities shall promptly implement such dispositions.

(5) Consideration of Issues Relating to Transfer to United States. The Review shall identify and consider legal, logistical, and security issues relating to the potential transfer of individuals currently detained at Guantánamo to facilities within the United States and the review participants shall work with Congress on any legislation that may be appropriate.

Section (4) would allow some form of MCA proceedings; and Section (5) would allow some form of long-term detention for Common Article 3 detainees. Those would be those detainees not subject to criminal charges; those subject to criminal charges are covered by Section (3).

Going back to another discussion, this could come out with a rule that it is no crime to be an unlawful combatant under CA 3, but we can detain you for a long, long time if you are found to be one.

I hope this rather long - and heavily referenced to the original - comment will be helpful to readers in assessing what the media says this EO says.

jmm99
01-22-2009, 08:13 PM
The as-signed Gitmo order (http://www.scotusblog.com/wp/wp-content/uploads/2009/01/guantanamo-exo-1-22-09.pdf) had no substantive changes from the draft order reported last nite.

An added order (http://www.scotusblog.com/wp/wp-content/uploads/2009/01/obama-order-on-al-marri-1-22-09.pdf) was signed in the al-Marri case (http://www.scotusblog.com/wp/government-to-reconsider-al-marri-case/) which is presently pending before SCOTUS.

Al-Marri is the case where DoJ (Ashcroft) began his prosecution in Federal District court under the Anti-Terrorism statutes. The prosecution was later dropped (first without prejudice to its renewal; then with prejudice to its renewal); and al-Marri has been detained in the Charleston Navy brig since then.


Government to reconsider Al-Marri case
Thursday, January 22nd, 2009 12:14 pm | Lyle Denniston
.....
President Obama on Thursday ordered the Justice Department to make a new review of the detention case now awaiting a rulng by the Supreme Court — Al-Marri v. Spagone (08-368); the review is to “commence immediately.” The case involves a Qatari national, Ali Saleh Kahlah Al-Marri, who was seized inside the U.S. where he was living legally, and has been held in military custody in this country for more than five years.
......
The President said the Justice Department will be asking the Supreme Court to delay the case, and it appears that the U.S. Solicitor General is already planning to seek at least a 30-day extension of time to file the government’s brief in the case — a brief that, at present, would be due Feb. 20. The case had been expected to be scheduled for oral argument sometime in March.

Al-Marri has already filed his merits brief, which is here (http://www.aclu.org/pdfs/safefree/almarrivspagone_brief.pdf), with an associated article here (http://www.scotusblog.com/wp/al-marri-brief-silence-does-not-confer-detention-power/).

This case is very unique because al-Marri is being held, not pursuant to a CSRT determination (as in the Gitmo cases), but pursuant to a Presidential order signed by President Bush:


Brief pp.4-5
Petitioner’s Designation and Detention as an “Enemy Combatant”

The following Monday morning, June 23, 2003—just days before the scheduled suppression hearing and less than a month before the scheduled trial date—the government moved ex parte and in camera to dismiss the indictment based on a one page redacted declaration signed by President Bush that same morning asserting a determination that al-Marri was an “enemy combatant.” Pet. App. 466a-467a.

The President’s declaration alleged in a conclusory fashion that al-Marri was “closely associated” with al Qaeda and had “engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism.” Pet. App. 466a.

The President claimed that al-Marri was “a continuing, present, and grave danger to the national security of the United States” and that military detention was “necessary to prevent him from aiding al Qaeda,” despite the fact that al-Marri had been imprisoned in solitary confinement by the government for eighteen months. Pet. App. 467a.

The President also asserted that al-Marri “possesse[d] intelligence . . . that . . . would aid U.S. efforts to prevent attacks by al Qaeda.” Pet. App. 467a. He ordered the Attorney General to surrender al-Marri to the Secretary of Defense and directed the latter “to detain him as an enemy combatant.” Pet. App. 467a.

jmm99
01-24-2009, 02:30 AM
Three judicial orders set some timelines for the Obama DoJ to tell us what (if any) policy changes will be made in the Gitmo and Bagram cases.

The first of these is the revised briefing and argument order in al-Marri (http://www.scotusblog.com/wp/court-extends-time-for-us-brief-in-al-marri-case/).


Court extends time for U.S. brief in Al-Marri case
Friday, January 23rd, 2009 1:37 pm | Lyle Denniston
.....
The Supreme Court on Friday granted a Justice Department request to delay, until March 23, the filing of the federal government’s merits brief in Al-Marri v. Spagone (08-368). The brief previously had been due on Feb. 20, but the new Obama Administration sought additional time to review its position, as directed on Thursday by President Obama. The new schedule of briefing indicates that oral argument in the case will not be held until the sitting that begins April 20.

If the initial Federal criminal prosecution had not been dismissed with prejudice, this case would present no great problem for the Obama DoJ. It could simply re-indict al-Marri and try him as a terrorist (let the jury decide). That course of action was the conservative course of action (going back to Justice Jackson's post-WWII opinions about the rights of resident aliens) - which may have been why it was initially chosen by Ashcroft. The task of the Obama DoJ, unless it opts for his outright release, is to come up with a process whereby he can be detained as an "enemy combatant".

The issue of defining an "enemy combatant" (http://www.scotusblog.com/wp/a-new-chance-to-define-enemy/) has been raised by District Judge John D. Bates, who is faced with 4 Bagram cases. His bio is here (http://www.dcd.uscourts.gov/bates-bio.html). Appointed in Dec 2001, his bio includes a couple of interesting facts:


From 1968 to 1971, he served in the United States Army, including a tour in Vietnam. [JMM - before law school] .... In February 2006, he was appointed by Chief Justice Roberts to serve as a judge of the United States Foreign Intelligence Surveillance Court.

In any event, here (link above) is some background on the order (more of a suggestion to the DoJ):


A new chance to define “enemy”
Thursday, January 22nd, 2009 11:46 pm | Lyle Denniston
....
A federal judge in Washington, giving the new Obama Administration an early chance to directly influence the scope of legal rights of Guantanamo Bay detainees, on Thursday invited the government — if it wishes — to offer a new definition of “enemy combatant.” U.S. District Judge John D. Bates set a Feb. 9 deadline for such a filing, issuing an order in Hamlily v. Obama (District docket 05-763), and two other cases.
....
The definition of “enemy combatant” is, of course, crucial in the detainees’ habeas challenges to their confinement. If a prisoner is found to meet the definition, that has determined whether he is detained and whether he remains detained by the U.S. military. It also has some effect on a detainee’s eligibility to be prosecuted for war crimes by a military commission.
....
U.S. District Judge Richard J. Leon, who has completed more contested habeas cases than any of his colleagues in Washington, last October became the first federal court to give a fixed legal definition of “enemy combatant.” In fact, he chose the one the Pentagon had first adopted in July 2004 — much more favorable to the government than what detainees’ lawyers had proposed.

Here is Judge Leon’s version: “An ‘enemy combatant’ is an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the Unied States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”

Detainees’ lawyers, in pleas to Judge Leon, had suggested that an “enemy combatant” should be defined only as someone who was a member of a foreign government’s armed forces engaged in hostilities, and civilians who directly participated in hostilies as part of an organized armed force.

Judge Leon's definition, his factual findings and decisions (running 6-3 in favor of detainees) have been discussed in prior posts. Judge Bates' order (http://www.scotusblog.com/wp/wp-content/uploads/2009/01/bates-order-on-ec-1-22-09.pdf) is a classic in understatement:


... the Court is currently reviewing the parties' submissions in anticipation of a ruling regarding the appropriate definition of "enemy combatant" for use in these habeas cases. The Court recognizes, however, that the new Presidential administration may wish to review the Government's current position regarding the appropriate definition of "enemy combatant" to be used in these and other habeas cases involving Guantanamo Bay detainees. Accordingly, the Court invites Respondents to submit any refinement of their position on the appropriate definition of "enemy combatant" by not later than February 9, 2009.

So, the Obama DoJ will have about 2 weeks to continue with Judge Leon's definition (basically a Common Article 3 definition); accept the detainees' definition (which probably would not find any detainee an "enemy combatant"); or come up with something different.

Addressing the specific Bagram cases (http://www.scotusblog.com/wp/obama-asked-for-views-on-bagram-detainees/), Judge Bates issued a second order (again more of a suggestion):


Obama asked for views on Bagram detainees
Friday, January 23rd, 2009 10:22 am | Lyle Denniston
....
President Obama’s changed policy on military detention at Guantanamo Bay, Cuba, announced Thursday, made no mention of the more than 600 prisoners the U.S. military now holds at another overseas prison — Bagram air base outside Kabul, Afghanistan. A White House official told reporters, at a briefing, not to expect any changes to existing policies in Afghanistan for at least six months.

There may have to be an answer earlier, though. Later in the day Thursday, a federal judge in Washington issued an order asking the new Administration to indicate whether it will continue to follow the Bush Administration view that Bagram detainees have no right to go to court to challenge their ongoing captivity.

Judge Bates order (http://www.scotusblog.com/wp/wp-content/uploads/2009/01/bates-bagram-order-1-22-09.pdf) again asks for "refinement" of DoJ's position:


Following the January 22 Executive Order, the Court is providing the new administration with an opportunity to provide input regarding the definition of "enemy combatant" for use in the Guantanamo Bay detainee habeas cases. See Hamlily v. Bush, et al., Civ.A.No. 05-0763 (Dkt. No. 140). Given the Executive Order and respondents' classified filing, the Court will provide the new administration with the same type of opportunity in these Bagram Airfield habeas cases. Hence, the Court invites respondents to inform the Court, in writing and by not later than February 20, 2009, whether they intend to refine their position in the above-captioned cases filed by detainees held at Bagram Airfield. Based on that submission, the Court will decide whether further briefing or some other course is appropriate.

Here, the Obama DoJ will have 30-days to develop its position. So, within the next 15-60 days (assuming DoJ does not request further continuences), we should have the Obama DoJ's position on three central constitutional issues.

Federal judges cannot order the Executive branch to adopt a national security policy. But, they can set timelines where its attorneys put up or shut up - realizing here that there are so many political commitments made that a defined policy decision has to be made.

jmm99
01-24-2009, 10:56 PM
actually, their attorneys have filed a letter request (http://www.scotusblog.com/wp/uighurs-lawyer-urge-immediate-release/).


Uighurs’ lawyers urge immediate release
Friday, January 23rd, 2009 11:10 pm | Lyle Denniston
....
Lawyers for 17 Guantanamo Bay detainees who are members of a long-persecuted Chinese Muslim minority urged leaders of the new Obama Administration on Friday to order the immediate release of the prisoners, to live at least temporarily in the U.S. The plea was made in a letter to Attorney General-designate Eric H. Holder, Jr., Acting Attorney General Mark R. Filip, and Defense Secretary Robert M. Gates. ....

Noting that President Obama on Thursday ordered a new review of every Guantanamo detainee’s situation, as part of a plan to close the prison at the U.S. Naval base in Cuba, the Uighurs’ attorneys wrote: “There is literally nothing left to review…The executive branch, the judiciary, and Members of Congress all have acknowledged that the Uighurs should be released.”

It added: “The issue for the Obama Administration is not whether the Uighurs should be released, but rather where they should be released.. We urge the government to release the Uighurs immediately in the only place they can be released — the United States.” ....

The letter, which is here (http://www.scotusblog.com/wp/wp-content/uploads/2009/01/swillett-1-23-09.doc), goes into some detail in reviewing the facts of the case. My own concern has been with the terms of release, which the letter covers:


Fortunately, detailed resettlement arrangements have already been put in place and presented to Judge Urbina, as shown in the attached materials that previously were submitted to the Court. These include the provision of refugee services by religious and refugee organizations. We are amenable to the imposition of reasonable release conditions, such as, for example, monitoring, by the Court in consultation with the Department of Homeland Security.

Although the Executive may choose to grant the men an immigration status, it may also choose not to do so. We do not believe that executive compliance with Judge Urbina’s release order would necessarily confer upon the men any immigration status. In such a situation, the men might be subject to removal to an appropriate country of resettlement should one later be found.

This seems more of a parole request than an outright release. Don't know whether this is a shot in the dark - or if it has been back-channeled (if so, the letter will probably get a positive response).

Another decision for the Obama DoJ to make.

jmm99
01-26-2009, 03:57 AM
You can draw your own conclusions from the following news articles.

Washington Post (http://www.washingtonpost.com/wp-dyn/content/article/2009/01/24/AR2009012401702.html?hpid=topnews)


Guantanamo Case Files in Disarray
Situation Complicates Prison's Closure
By Karen DeYoung and Peter Finn
Washington Post Staff Writers
Sunday, January 25, 2009; Page A05

President Obama's plans to expeditiously determine the fates of about 245 terrorism suspects held at Guantanamo Bay, Cuba, and quickly close the military prison there were set back last week when incoming legal and national security officials -- barred until the inauguration from examining classified material on the detainees -- discovered that there were no comprehensive case files on many of them.

Instead, they found that information on individual prisoners is "scattered throughout the executive branch," a senior administration official said. The executive order Obama signed Thursday orders the prison closed within one year, and a Cabinet-level panel named to review each case separately will have to spend its initial weeks and perhaps months scouring the corners of the federal government in search of relevant material. ....

Newsweek (http://www.newsweek.com/id/181453)


Safe To Release?
A new Pentagon report may complicate Obama's plans for Gitmo.
By Michael Isikoff | NEWSWEEK
Published Jan 24, 2009
From the magazine issue dated Jan 24, 2009

The Pentagon is preparing to declassify portions of a secret report on Guantanamo detainees that could further complicate President Obama's plans to shut down the detention facility.

The report, which could be released within the next few days, will provide fresh details about 62 detainees who have been released from Guantanamo and are believed by U.S. intelligence officials to have returned to terrorist activities, according to two Pentagon officials who asked not to be identified talking about a document that is not yet public. One such example, involving a Saudi detainee named Said Ali Al-Shihri, who was released in 2007, received widespread attention Friday when Pentagon officials publicly confirmed that he has recently reemerged as a deputy commander of Al Qaeda in Yemen. Al-Shihri, once known publicly only as Guantanamo detainee No. 372, is suspected of involvement in a thwarted attack on the U.S. embassy in Yemen last September. ....

Yahoo News (http://news.yahoo.com/s/afp/20090124/wl_mideast_afp/usattacksguantanamoqaedayemen)


Two ex-Guantanamo inmates appear in Al-Qaeda video
Print Sat Jan 24, 1:52 pm ET

WASHINGTON (AFP) – Two men released from the US "war on terror" prison at Guantanamo Bay, Cuba have appeared in a video posted on a jihadist website, the SITE monitoring service reported.

One of the two former inmates, a Saudi man identified as Abu Sufyan al-Azdi al-Shahri, or prisoner number 372, has been elevated to the senior ranks of Al-Qaeda in Yemen, a US counter-terrorism official told AFP.

Three other men appear in the video, including Abu al-Hareth Muhammad al-Oufi, identified as an Al-Qaeda field commander. SITE later said he was prisoner No. 333.

For the rogues gallery, go here (http://news.yahoo.com/nphotos/Guantanamo-Bay/photo//090124/photos_wl_me_afp/5d5546d5a86cea15ad12719f6d58f09d//s:/afp/20090124/wl_mideast_afp/usattacksguantanamoqaedayemen;_ylt=AqB1I1tx6KWOTM_ q2.rFJ66bOrgF) - 109 photos - know your enemy.

CNN News (http://edition.cnn.com/2009/POLITICS/01/24/gitmo.detainees/)


January 24, 2009 -- Updated 2122 GMT (0522 HKT)
Security experts skeptical on Gitmo detainee report

WASHINGTON (CNN) -- Security experts are questioning information released by the Pentagon last week, saying 61 former detainees from its detention center at Guantanamo Bay, Cuba, may have returned to terrorist activities.

The report, released days before President Obama took office, says 18 former detainees are confirmed to have participated in attacks, and 43 are suspected to have been involved in attacks.

That figure would be about 11 percent of the roughly 520 prisoners who have been released from the Guantanamo facility, which Obama on Thursday ordered be shut down.

On Friday, a Pentagon spokesman defended the integrity of the report but would not directly answer questions about where the figures come from.

"We don't make these figures up. They're not done willy-nilly," spokesman Geoff Morrell said. ...

Not quite as easy as the pundits trumpeted before 20 Jan.

Ken White
01-26-2009, 04:47 AM
some well publicized efforts of their predecessor's. Almost invariably a cock up or two results. Most of Bush's first term mistake were due to that syndrome. These guys are even more arrogant so there'll be more in the next couple of years...

jmm99
01-29-2009, 04:44 AM
as reported here (http://www.pr-inside.com/us-judge-oks-holding-taliban-cook-r1030797.htm).


US judge OKs holding Taliban cook at Guantanamo
© AP
2009-01-28 20:35:02 -

WASHINGTON (AP) - A Guantanamo Bay prisoner who says he merely cooked meals for Taliban forces and never fired a shot in battle lost his petition to be released Wednesday after being held for more than seven years. ...

I will quote extensively from Judge Richard Leon's opinion, which is here (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2005cv1312-89), because it was panned on MSNBC's Countdown tonite:


(opinion, pp.6-9)
The Government's evidence is a combination of certain statements of the petitioner that the Court finds credible and certain classified documents that help establish the most likely explanation for, and significance of, petitioner's conduct. Due to the unclassified nature of this proceeding, however, the Court is limited to the following explanation of the factual basis of the Government's case.

First, with respect to staying at particular al Qaeda affiliated guesthouses in Afghanistan, the Government was able to establish this allegation by a preponderance of the evidence by relying primarily on petitioner's own admissions. (See Unclassified Opening at 17 :24-18:9.) The Court finds these admissions to be credible and consistent not only with respect to his visits, but also with his overall trip to Afghanistan to participate in jihad on behalf of the Taliban against the Northern Alliance.

Next, with respect to the Government's allegations that petitioner attended two al Qaeda affiliated training camps (Le. al Farouq and Khalid bin Al Walid), the Court is posed with the novel dilemma of choosing between two diametrically opposed accounts by petitioner about receiving military training; the second of which being a wholesale recantation of the first. (GEx. 49 at 4 [Dkt. #83-4].) In particular, from January 2002 to June 2005, petitioner consistently acknowledged in numerous interrogation sessions that he had attended both of these al Qaeda affiliated training camps as a part of his preparation to join the 55th Arab Brigade. Indeed, on a number of occasions he described in significant detail the training regiment, method of instruction, and instructors at these camps. In June of 2006, however, he suddenly reversed course when he testified as part of his ARB hearing that he had never received military training at any time. (GEx. 49 at 4-5 [Dkt. #83-4].) Curiously, in an interrogation session after his ARB proceeding, he reversed course once again and acknowledged attending these military training camps. While it is tempting to resolve this dispute on behalf of the Government by accrediting, as a matter of common sense, Al Bihani's longstanding and consistent admission to attending those camps, the Court will refrain from doing so as unnecessary in light of the overwhelming and consistent testimony of the petitioner in support of the Government's
third allegation.

As stated previously, the Government's final, and most telling, allegation is that the petitioner, as a member of the SSth Arab Brigade fighting unit, "supported" the Taliban in its fight against the Northern Alliance both prior to and after the initiation of force by the U.S. in October 2001. In that regard, however, petitioner strongly contends that his service in the S Sth Arab Brigade was limited to serving as a cook and kitchen aid to its ISO-plus fighters. Although he acknowledges being assigned a rifle and ammunition, (Unclassified Opening at 18:13), Al Bihani contends that he never fired the rifle in a battle against the Northern Alliance, let alone the United States and its allied forces. Unfortunately petitioner misconstrues the concept of "support" inherent in the enemy combatant definition. It is not necessary, as this Court ruled previously in the Al Alwi case (Ghazy et al. v. Bush et aI., No. OS-2223, Dkt. # 107 at 8 (D.D.C., filed Nov. IS, 200S», that petitioner actually fire a weapon against the U.S. or coalition forces in order for him to be classified as an enemy combatant under the definition adopted by this Court. Petitioner has not only admitted to serving under an al Qaeda military commander, but his close ties to Taliban and al Qaeda affiliated forces as a member of the Arab Brigade unit, albeit in a non-front-line capacity, is more than enough. Indeed, it is particularly telling that when he finally retreated from the front lines, he did so only: (1) after the U.S. had commenced its bombing campaign against the Taliban; (2) in response to an order from his commander; (3) with Taliban forces, in Taliban trucks, and armed with his Taliban-issued Kalashnikov rifle; and (4) to a designated guesthouse where the unit went to regroup in preparation for its next mission. (GEx. 6 at 7-10.) Of course, it was at that location, that his unit commander ultimately decided to surrender to the Northern Alliance troops headed by General Dostum. (GEx. 6 at 10.) Simply stated, faithfully serving in an al Qaeda affiliated fighting unit that is directly supporting the Taliban by helping to prepare the meals of its entire fighting force is more than sufficient "support" to meet this Court's definition. After all, as Napoleon himself was fond of pointing out: "an army marches on its stomach."

In short, I will not call you a liar (though I should) because there is more than enough evidence to find you a combatant, albeit a remf.

I see no justification for panning the decision, which deals solely with the question of detention under GC Common Article 3.

jmm99
02-04-2009, 06:19 PM
The initial report on resolution of Gitmo issues has been assigned (http://www.scotusblog.com/wp/top-admiral-to-study-detainee-prison/).


Top admiral to study detainee prison
Tuesday, February 3rd, 2009 5:01 pm | Lyle Denniston
....
The Navy’s second-highest ranking officer, a four-star admiral, was named on Tuesday to conduct a new study of the military’s operation of the prison for detainees at Guantanamo Bay, Cuba, the Pentagon announced. ....
.....
It appeared likely that Admiral Walsh, besides studying conditions of confinement of the prisoners there, will also examine the current state of the war crimes prosecution system — the military commissions. ....

The AFPS release (http://www.defenselink.mil/news/newsarticle.aspx?id=52940) provides more detail.


Navy Admiral to Lead Review of Guantanamo Detention Facility
By Gerry J. Gilmore
American Forces Press Service

WASHINGTON, Feb. 3, 2009 – Defense Secretary Robert M. Gates has selected a Navy four-star admiral to lead an assessment of operations at the U.S. detention center at Guantanamo Bay, Cuba, a senior Defense Department official said here today.
...
The admiral’s review of Guantanamo’s detention operations is to be completed within 30 days, Morrell said.

Pentagon officials believe that detainee operations at Guantanamo “have been in compliance with Common Article 3 of the Geneva Conventions for some time and are still so,” Morrell said.

This and prior orders place the focus on CA 3, which (IMO) is where it should be as to issues of detainee status and length of alllowable detention.

The question of war crimes and other criminal violations by detainees is separable from the issue of appropriate CA 3 policies governing detention itself. There has been some confusion (and some conflicting statements) about that over the past 7 years.

jmm99
02-04-2009, 08:18 PM
Propublica has published a chart (http://www.propublica.org/special/missing-memos?s=1)of several dozen internal Executive branch memos written in 2001-2005, most dealing with detainee issues.

The Obama administration is being asked (by Propublica) to release them. If they are released, they probably would shed some light on the decisions which were made prior to the various SCOTUS decisions and enactment of the MCA.

jmm99
02-05-2009, 03:20 AM
Of three updates tonite, the first is the schedule in al-Marri (http://www.scotusblog.com/wp/wide-support-for-al-marri/).


Wide support for Al-Marri
Wednesday, February 4th, 2009 7:03 pm | Lyle Denniston
....
Awaiting word on President Obama’s position on domestic detention of terrorism suspects, lawyers for the only detainee being held inside the U.S. have gained a wide array of support for his Supreme Court appeal. A total of 18 amicus briefs have been filed in the case, Al-Marri v. Spagone (08-368). ...
...
The government’s brief in the case had been due on Feb. 20, but the Court on Jan. 23 extended the time for filing that document until March 23, at the request of the Obama Administration....
....
It appears that, if the case proceeds before the Court, it would be heard in the argument session that begins on April 20.

The ACLU links to the briefs filed in this SCOTUS appeal are here (http://www.aclu.org/safefree/detention/case_almarri.html) and here (http://www.aclu.org/safefree/detention/38510res20090128.html).

Al-Marri is a unique case because it involves a non-citizen, legal resident of the US, who was in the US when he allegedly acted as an AQ agent, was arrested and detained. As such, it is factually and legally distinct from the Gitmo and Bagram cases. It also should have no impact on the legal positions of Gitmo or Bagram detainees who might be brought into the US as Common Article 3 detainees.

jmm99
02-05-2009, 04:27 AM
The CMCR (U.S. Court of Military Commission Review) has continued (http://www.scotusblog.com/wp/jawad-torture-case-put-on-hold/) the Jawad case for 120 days.


Jawad torture case put on hold
Wednesday, February 4th, 2009 8:10 pm | Lyle Denniston
...
With a bow to presidential power to fashion detention policy, the military’s highest court on war crimes prosecutions on Wednesday gave the Obama Administration a requested 120-day delay of a pending case to allow a new study of the fate of prisoners at Guantanamo Bay.
....
By postponing a ruling in the case, the military court spared the Obama Administration from having to make a prompt decision — in order to gain time for its study of detention policy — either to have war crimes charges dismissed, or else withdraw the prosecutors’ appeal, thus forfeiting it.
....
The case has been fully briefed and was argued Jan. 13, and ordinarily, the Court would have produced a ruling within 30 days. Now, it will not do so for 120 days.

The US motion is here (http://www.scotusblog.com/wp/wp-content/uploads/2009/02/us-continue-jawad-cmcr.pdf); the detainee's opposition is here (http://www.scotusblog.com/wp/wp-content/uploads/2009/02/jawad-response-cmcr-jan-09.pdf); and the Court's opinion is here (http://www.scotusblog.com/wp/wp-content/uploads/2009/02/cmcr-stay-order-2-4-09.pdf).

The major legal point made by the appeals court hinged on Presidential powers:


(opinion p.2)
Indeed, the U.S. Supreme Court has often recognized that the President has the principal constitutional responsibility for national security and foreign policy. See e.g., Dep’t of the Navy v. Egan, 484 U.S. 518, 529 (1988) (quoting Haig v. Agee, 453 U.S. 280, 293-94 (1981)) (citing “the generally accepted view that foreign policy was the province and responsibility of the Executive”); Harlow v. Fitzgerald, 457 U.S. 800, 812 n. 19 (1982) (national security and foreign policy are “‘central’ Presidential domains”); United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936) (stating the “very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations”). We, thus, accord great deference to the President in his determination that the Interagency review is required – now – in the interests of national security and foreign policy.

Thus, this decision virtually insures that other MCA cases will be stayed for the requested 120-days - until 20 May 2009.

---------------------------
Lyle's article also mentions the Jawad habeas case in DC District, and another civil action (by former detainees) presently before the DC Circuit.


The new Administration is seeking to put Jawad’s habeas case in District Court on hold until after his war crimes proceedings are over. Jawad’s lawyers are to respond to that plea by Feb. 13. As of now, the Administration also has a Feb. 27 deadline in the habeas case to file its formal reasons for continuing to detain Jawad as an “enemy combatant.”

There is another case pending in federal court in which the new President and his legal and military teams must take a position on legal issues growing out of claims of torture. The other is at the D.C. Circuit Court, after being returned there by the Supreme Court, involving four Britons who are seeking a right to sue Pentagon officials over alleged torture while they were prisoners at Guantanamo Bay. Both sides are to file new briefs in that case by March 12. (They have been released, and have returned to Britain, but their lawsuit continues.)

Discussion of the civil action by the four British citizens would unduly complicate the present discussion because its issues are different from either MCA cases or the DC District habeas cases - all in due course.

Brief Opinion Piece

The Obama administration's motion to stay the Jawad habeas proceeding may be unwise - unless it (somewhat like the Bush administration) wants to mix the issue of Common Article 3 detention, with the issue of "war crimes" trials under the MCA.

In this, I am following Judge Leon's lead in treating the habeas cases as single issue cases - is there a preponderence of evidence that the detainee was an "enemy combatant" ? Using that standard, Judge Leon has decided 10 detainee cases on the merits.

In Jawad, the issue of whether he was an enemy combatant may well involve some evidence that would also be relevant and material to the criminal charges under the MCA. Perhaps, the Obama DoJ wants to keep its options open - that is, attempt to stay all DC habeas cases in which MCA charges are pending or might be brought. We shall see.

Since the Jawad habeas case is nearly ready to go (it could be tried in March), my preference would be for an Article III judge to decide the merits of whether Jawad was an "enemy combatant" subject to CA 3 detention. If the DoJ cannot meet that fairly minimal standard, the DoD shouldn't be charging crimes under the MCA.

jmm99
02-05-2009, 05:25 AM
and creating a problem in US-UK relations, as posted by David here (http://council.smallwarsjournal.com/showthread.php?p=65996#post65996) (post #7).

The posture of this case before US tribunals is presently:

1. An MCA criminal prosecution was initiated, but then terminated without prejudice to renewal. Given the 120-day stay policy in those cases (see prior post), no MCA proceedings will be brought until after 20 May - if at all.

2. A DC District habeas case is pending before Judge Emmet Sullivan. This case has been mired in arguments over discovery of evidence - centered on some 42 documents in the possession of the USG; and is further clouded by allegations of extraordinary renditions and subsequent torture. The issue of whether Mohamed is now being detained as a CA 3 enemy combatant, as his status when he was first detained, has been lost in the shuffle.

Meanwhile, Mohamed's UK lawyers brought an equitable action in the UK to compel the UKG to disclose its copies of the 42 documents. That proceeding (http://www.judiciary.gov.uk/judgment_guidance/judgments/mohamed210808.htm) has resulted in four decisions:

21 August 2008 (http://www.judiciary.gov.uk/docs/judgments_guidance/mohamed_full210808.pdf)
High Court (Queen's Bench Division) Divisional Court Judgment

29 August 2008 (http://www.judiciary.gov.uk/docs/judgments_guidance/mohamed_judgment2_290808.pdf)
High Court (Queen's Bench Division) Divisional Court Judgment

22 October 2008 (http://www.judiciary.gov.uk/docs/judgments_guidance/mohamed_judgment3_221008.pdf)
High Court (Queen's Bench Division) Divisional Court Judgment

4 February 2009 (http://www.judiciary.gov.uk/docs/judgments_guidance/mohamed-judgment4-04022009.pdf)
High Court (Queen's Bench Division) Divisional Court Judgment

This case is now well beyond any normal legal discussion, since it is being used for political purposes (rightly or wrongly) - and seems to have driven something of a wedge in UK-US relations.

The bottom line holding by Lord Justice Thomas (as to the redacted portions of the 42 documents) is:


(opinion, pp.33-34)
107. How is this judgement of the Foreign Secretary in relation to the public interest in national security to be balanced against the public interest in open justice as safeguarding the rule of law, free speech and democratic accountability? In our judgement the decisive factors are the other means which have resulted from these proceedings for safeguarding democratic accountability and the rule of law (the reference of the matter to the ISC and the Attorney General) and what has already been placed into the public domain which can engender debate. In the circumstances now prevailing, the balance is served by maintaining the redaction of the paragraphs from our first judgment. In short, whatever views may be held as to the continuing threat made by the Government of the United States to prevent a short summary of the treatment of BM being put into the public domain by this court, it would not, in all the circumstances we have set out and in the light of the action taken, be in the public interest to expose the United Kingdom to what the Foreign Secretary still considers to be the real risk of the loss of intelligence so vital to the safety of our day to day life. If the information in the redacted paragraphs which we consider so important to the rule of law, free speech and democratic accountability is to be put into the public domain, it must now be for the United States Government to consider changing its position or itself putting that information into the public domain.

Perhaps, Lord Justice Thomas will have an answer by 20 May 2009, which now seems the target date for action by the Obama administration on several fronts.

jmm99
02-08-2009, 02:59 AM
The testimony of Leon Panetta, if it reflects a considered view held by the Obama administration, outlaws "extraordinary rendition" and torture; but allows ordinary rendition and temporary (mesne) detention.

As reported by the Washington Times (http://washingtontimes.com/news/2009/feb/06/panetta-supports-rendition-but-not-torture/).


Panetta backs rendition, but not torture
Eli Lake (Contact)
Friday, February 6, 2009
Leon Panetta, the Obama administration's nominee to head the CIA, said Thursday that the administration would return to Clinton-era practices that sent terrorist suspects to foreign countries for prosecution.

Mr. Panetta said that under the new executive orders President Obama issued on the second day of his presidency, "extraordinary rendition" -- the practice of sending prisoners to foreign dungeons for enhanced interrogation or torture -- would not be allowed. But the nominee told the Senate Select Committee on Intelligence that returning an individual to a country for trial would be appropriate.

"In renditions where we returned an individual to the jurisdiction of another country, and they exercised their rights to try that individual and to prosecute him under their laws, I think that is an appropriate use of rendition," he said.
.....
Mr. Panetta also asserted the CIA's right to hold suspects on a temporary basis, a practice that he said was allowed under the executive orders signed by Mr. Obama on Jan. 22.

"Without going into the exact location, if we captured Osama bin Laden, we would find a place to hold him temporarily," he said. "We would debrief him and then we would incarcerate him, probably in a military prison."

Pros and cons in the rest of the article.

jmm99
02-10-2009, 05:23 PM
but not in the arena of detainees - based on the first Obama DoJ submission (http://www.scotusblog.com/wp/no-new-definition-of-enemy-now/) to Judge Bates' request that the DoJ advise him if the definition of "enemy combatant" will be "refined".


No new definition of “enemy” now
Monday, February 9th, 2009 10:27 pm | Lyle Denniston
.....
The Obama Administration, in its first significant court filing dealing with detainees’ challenges to their imprisonment, urged a federal judge on Monday not to lay down a general definition of who is to be held in confinement as an “enemy combatant.” The judge should decide on the Executive Branch’s authority to detain terrorism suspects only on an individual, case-by-case basis, the Justice Department said in a five-page filing, found here, in U.S. District Court in Washington. .....

The DoJ filing is here (http://www.scotusblog.com/wp/wp-content/uploads/2009/02/obama-admin-reply-re-enemy-2-9-09.pdf).

It is not especially remarkable that a lawyer can write 5 pages without saying anything. It is somewhat remarkable that the new DoJ has no position on the definition of what constitutes an "enemy combatant" - considering all of the ink and bytes that have been expended over the last 7 years.

Judge Bates' problem is that he is not faced with generalities, but with 3 actual cases (discussed here (http://council.smallwarsjournal.com/showthread.php?t=4921&page=9) at post #171), where he has to decide whether those particular detainees were "enemy combatants" subject to detention.

Perhaps, these DoJ folks were just having a bad hair day (happens to us all). A less charitable view would be that they are not well acquainted with the Laws of War.

jmm99
02-13-2009, 07:52 PM
by March 13, says Judge Bates (http://www.scotusblog.com/wp/judge-rules-on-enemy-definition/).


Judge rules — temporarily — on “enemy” definition
Friday, February 13th, 2009 10:38 am | Lyle Denniston
....
In the first federal court ruling rejecting a position of the Obama Administration on detention of terrorism suspects, a federal judge in Washington on Wednesday turned aside an Administration plea to go forward with detainees’ challenges without first defining who may be held as an “enemy combatant.” U.S. District Judge John D. Bates decided that no habeas cases can be decided without settling who may be treated as an enemy in the “war on terrorism.” However, he did give the Administration some added time — until March 13 — to come up with an alternative definition to one that he will be using temporarily.
....
Here is the definition (outlined by the government on Jan. 7, during the final days of the Bush Administration):

“At a minimum, the President’s power to detain includes the ability to detain as enemy combatant those individuals who were part of, or supporting, forces engaged in hostilities against the United States or its coalition partners and allies. This includes individuals who were part of or directly supporting Taliban, al-Qaida, or associated forces, that are engaged in hostilities against the United States, its coalition partners or allies. This also includes any persons who have committed a belligerent act or supported hostilities in aid of enemy forces.”

This definition is slightly more expansive than the definition drafted by Judge Leon, which formed the basis for his decisions to date.

The judge's order is here (http://www.scotusblog.com/wp/wp-content/uploads/2009/02/bates_order_re_ec_211091.pdf).


(opinion, pp.2-3)
Under the Case Management Order ("CMO") that governs these cases, see Hamlily v. Obama, Civ.A.No. 05-0763 (dkt. ent. #116), the date by which the parties and the Court will need to begin wrestling with the merits of these cases is fast approaching. And as in most civil and criminal proceedings, well before the hearing (i.e., trial) on the merits the parties and the Court must have a clear, uniform understanding of the key legal standard to be applied -- e.g., the criminal charge, or the tort asserted, or the controlling constitutional claim. So, too, here, with respect to the core controlling legal standard of "enemy combatant" to be applied to the specific facts in each individual detainee's case.

Nevertheless, given respondents' representations regarding the Executive Branch's need for additional time to review these and other Guantanamo Bay detainee cases, the Court is inclined to delay somewhat its decision on the definition of "enemy combatant." Although the Court is concerned with petitioners' ability to conduct discovery and file traverses in these cases
without the benefit of an "enemy combatant" definition, the Court concludes that it can manage the discovery process without first deciding the issue and, more importantly, that petitioners will not be prejudiced. Where necessary to resolve the scope of discovery obligations under the CMO, however, the Court will apply the broadest proposed definition of "enemy combatant" -- i.e., the definition proposed in respondents' brief filed in these cases on January 7, 2009. See Hamlily, Civ.A.No. 05-0763 (dkt. ent. #126). That means that discovery will likewise be broad based on that definition, but respondents should not be heard to complain, since they have to date declined to modify their position.

Respondents' rationale for their proposal to put off deciding the central legal standard of "enemy combatant" is not persuasive, and the Court's willingness to permit some delay is only to accommodate the ongoing "new" Executive Branch review. Hence, the Court will agree to delay deciding the "enemy combatant" issue even though it rejects respondents' contention that a
decision "on the scope of the Government's detention authority" should be made in a "case-bycase" manner, and only upon reaching the merits stage of these proceedings. Of course, the question whether a particular petitioner is an "enemy combatant" is a highly fact-intensive determination that must necessarily be made on a case-by-case basis in light of the evidence
presented. But the definition of the central legal term "enemy combatant" is not a moving target, varying from case to case, and the Court intends to rule on that definition before the parties reach a critical point in these proceedings. That point, the Court concludes, is at the briefing on motions for judgment on the record. [now set for 3 Mar]

jmm99
02-16-2009, 06:14 PM
The Mohamed case was first reported in this thread here (http://council.smallwarsjournal.com/showthread.php?p=55748&highlight=binyam#post55748) (post #83).

The NY Times has filed a very short (4 sentence) item (http://www.nytimes.com/2009/02/16/world/europe/16london.html?_r=1), stating that he will be released from Gitmo and returned to the UK. The Times Mohamed index is here (http://topics.nytimes.com/top/reference/timestopics/people/m/binyam_mohamed/index.html?inline=nyt-per).


British Detainee to Return Home
By THE NEW YORK TIMES
Published: February 15, 2009

LONDON — A British terrorism suspect, Binyam Mohamed, who says he was tortured while in American custody, was examined Sunday by a British medical team at Guantánamo Bay, Cuba, in preparation for his return home, British officials and the detainee’s lawyers said.

The British team concluded that Mr. Mohamed, who has been in American custody for seven years and began a hunger strike last month, could travel. One of his lawyers, Clive Stafford Smith, said Mr. Mohamed was expected to return to Britain this week.

The British have been seeking his release and return since August 2007.

More background through yesterday is found at CBS News (http://www.cbsnews.com/stories/2009/02/15/world/main4804052.shtml?source=RSSattr=HOME_4804052) and the London Observer (http://www.guardian.co.uk/world/2009/feb/15/foreign-office-guantanamo-torture).

Last Monday, as reported on Wednesday by the UK Guardian (http://www.guardian.co.uk/world/2009/feb/11/binyam-mohamed-release-torture-letter), counsel for Mohamed submitted a letter and attached memo (http://image.guardian.co.uk/sys-files/Guardian/documents/2009/02/11/CSSlettertoObama.pdf) to President Obama. The memo is totally redacted.

Thanks to David for keeping us aware of the UK take on this story - not yet ended.

jmm99
02-18-2009, 07:12 PM
In what will probably not be a landmark decision, a 3-judge DC Circuit panel (http://www.scotusblog.com/wp/uighurs-barred-from-us/) has vacated Judge Urbina's conditional release order and remanded the case to him "for further proceedings, in accordance with the opinion of the court..."


Uighurs barred from U.S.
Wednesday, February 18th, 2009 11:20 am | Lyle Denniston
....
Setting up a new detention policy challenge for the Obama Administration, the D.C. Circuit Court ruled on Wednesday that a federal judge had no authority to order the release into the U.S. of 17 Chinese Muslim Uighurs being held at Guantanamo Bay, Cuba. The ruling overturned a decision last October by a federal judge, who ruled that release into this country was the only option since the government no longer considered them to be “enemy combatants” and they could not safely be returned to their homeland in China.
.....
The Circuit Court decision appeared to be confined closely to the single issue of whether a federal judge may order release into the U.S. of non-citizens being held outside U.S. territory. The majority noted that the only claim by detainees that was before it was not “simple release” from Guantanamo, but whether a court could order the Executive Branch “to release them into the United States outside the framework of the immigration laws….The question here is not whether petitioners should be released, but where.”

Reversal of Judge Urbina's order is not surprising; but the opinion (http://www.scotusblog.com/wp/wp-content/uploads/2009/02/kiyemba-ca-ruling-2-18-09.pdf) and judgment (http://www.scotusblog.com/wp/wp-content/uploads/2009/02/kiyemba-judgment-2-18-09.pdf) give him no real guidance on what he should do with the case.

The opinion is on solid ground in defining the limitations placed on the judiciary in matters involving admissions of aliens to the US.


(opinion, pp.6-8; footnotes omitted)
For more than a century, the Supreme Court has recognized the power to exclude aliens as “‘inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers – a power to be exercised exclusively by the political branches of government’”7 and not “granted away or restrained on behalf of any one.” The Chinese Exclusion Case, 130 U.S. 581, 609 (1889). Ever since the decision in the Chinese Exclusion Case, the Court has, without exception, sustained the exclusive power of the political branches to decide which aliens may, and which aliens may not, enter the United States, and on what terms. [JMM: over 100 years of case citations follow here]

With respect to the exclusive power of the political branches in this area, there is, as the Supreme Court stated in Galvan, “not merely ‘a page of history,’ . . . but a whole volume. Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government.” 347 U.S. at 531 (quoting N.Y. Trust Co. v. Eisner, 256 U.S. 345, 349 (1921)). Justice Frankfurter summarized the law as it continues to this day: “Ever since national States have come into being, the right of the people to enjoy the hospitality of a State of which they are not citizens has been a matter of political determination by each State” – a matter “wholly outside the concern and competence of the Judiciary.” Harisiades, 342 U.S. at 596 (concurring opinion).

As a result, it “is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.” Knauff, 338 U.S. at 543. With respect to these seventeen petitioners, the Executive Branch has determined not to allow them to enter the United States.

This argument does sink Judge Urbina's effort to arrive at a practical solution to the Uighur problem. That solution is summed in Judge Rogers' separate opinion (p.22, n.5):


Petitioners were to be released in accordance with a detailed plan, developed with Lutheran Immigration and Refugee Services, the president of the World Uighur Congress, and others for their housing with Uighur families in the area, transportation, financial support, and care. See Oct. 2008 Mot. Hr’g Tr. at 49-52, 63. They acknowledged through counsel that conditions for bringing them into the country presented issues for the Department of Homeland Security. Id. at 52.

Judge Urbina may now be thinking of the saying that "no good deed goes unpunished". In any event, he is back to the drawing board.

What is not at issue here is that the Uighurs have a right to be released.


(opinion, pp. 12-13)
We do know that there is insufficient evidence to classify them as enemy combatants – enemies, that is, of the United States.
....
1. Judge Rogers: “The power to grant the writ means the power to order release.” Sep. Op. at 10.

No matter how often or in what form Judge Rogers repeats this undisputed proposition – and repeat it she does – it will not move us any closer to resolving this case. The question here is not whether petitioners should be released, but where. That question was not presented in Boumediene and the [Supreme] Court never addressed it.

Judge Urbina might find some guidance in how Judge Leon has handled the cases in which he has ordered release - that the detainee "be released from custody forthwith". In short, unlock the door and let the detainee out of his confinement block. What happens then is the Executive Branch's problem, not Judge Leon's.

I do not know either of these judges (beyond their opinions in these and related cases), but they do seem to represent two different judicial approaches to solving problems. Judge Urbina tried to present a nearly-complete but complex solution. Judge Leon has approached these cases more narrowly to find a solution to the immediate problem - and let the other branches work out the issues not directly before him.

davidbfpo
02-18-2009, 10:45 PM
The Guardian today has reported on the House of Lords (similar to US Supreme Court) ruling Abu Qatada, AQ suspect and often described as AQ's leader in Europe, can be deported to Jordan: http://www.guardian.co.uk/uk/2009/feb/18/abu-qatada-deport-jordan

Qatada has appealed to the European Court of Human Rights, so will not be deported soon. There is a link to the House of Lords judgement.

A couple of days ago the International Commission of Jurists, an eminent panel of statesmen, judges and experts who spent three years investigating the impact of 9/11 on counterterrorism laws in more than 40 countries, issued their report: http://www.icj.org/news.php3?id_article=4453&lang=en .

A writer in The Guardian writes: http://www.guardian.co.uk/commentisfree/2009/feb/17/humanrights-icj-liberty-central

And I have selected one phrase 'What is thought-provoking – to say the least – about the commission's report, is the fact that the UK is implicated in almost all of the measures singled out for criticism. Extraordinary rendition; detention without trial; complicity in torture; and control orders? We didn't even follow suit in the other country's use of those – we invented them'.

A former law lord (member of House of Lords, when sitting as a court) has written: http://www.guardian.co.uk/commentisfree/2009/feb/17/surveillance-civil-liberties

A former head of the UK Security Service (aka MI5) has commented on the changes in the UK, to a Spanish newspaper, but only just picked up here: http://www.guardian.co.uk/uk/2009/feb/17/government-exploiting-terrorism-fear

The Binyam Mohammed case (prisoner in G-Bay) rolls on, when will he be released and whether MI5 had a part in his interrogation or alleged torture?

davidbfpo

jmm99
02-19-2009, 05:24 AM
for the comparative law references: the HL opinions in Abu Qatada and the ICJ report (over 300 pages between the two). I will look at them more carefully - and perhaps comment at some point.

The comments by Lord Bingham and Ms. Rimington primarily address domestic UK concerns; although similar issues exist here - with much discussion past, present and to come. Because of our overriding written Constitution, the context, however, is quite different. Methinks 'tis difficult for Europeans to grasp fully the different legal approach which results from that document.

The infamous triangle of "extraordinary rendition; detention without trial; complicity in torture", as cited in Ms. Hirsch's article, is at the center of the Binyam Mohamed case. If my wish were granted, I would like to see that case brought to a merits hearing before the likes of Judge Leon. So far, that case has been marked more by allegations than evidence - the UK case being something of an exception since some (but not all) witnesses were at least briefly deposed.

If one runs only with this Guardian article's headline (http://www.guardian.co.uk/world/2009/feb/16/pakistan-torture-mi5-agent-binyam) "Whitehall devised torture policy for terror detainees" and its lead:


A policy governing the interrogation of terrorism suspects in Pakistan that led to British citizens and residents being tortured was devised by MI5 lawyers and figures in government, according to evidence heard in court.

one could reasonably infer that torture was applied to British citizens and residents in veritable droves. The article then discusses the very limited testimony of Witness B in the UK Binyam Mohamed case. Factually, how many other Binyam Mohamed cases are there ?

The UK has gone a bit beyond the US in issuing "control orders" (38 issued; 15 in force) against British citizens and residents, which I now understand in their basics via Ms. Hirsch's link to this Guardian article (http://www.guardian.co.uk/commentisfree/libertycentral/2009/feb/03/civil-liberties-control-orders).

The only US example, roughly corresponding to a UK control order, was Pres. Bush's unique executive order imprisoning al-Marri. That case is presently before SCOTUS, with a decision possible this year. All other US citizens and residents have been tried criminally or released.

Has any UK court considered the status of battlefield detainees in light of the GCs, especially Common Article 3 ? I suppose even more basic - is there a specific military policy governing detainment by UK forces in Iraq and Astan ?

jmm99
02-19-2009, 09:26 PM
I've slogged through the EJPR (http://www.icj.org/IMG/EJPReport.pdf) - whether anyone else cares to do that depends on his or her level of masochism.

This is a report on the legal failings of "counter-terrorism". If you believe (as do I) that terrorism is a tactic and not a disease, the value of taking a "counter-terrorism" approach may well be questioned.

In any event, three quotes provide a context and bottom-line in what the report's arguments boil down to. Since the .pdf file doesn't allow me to cut and paste - at least on this computer, I'll just quote the key words. So, you'll have to read the page cited in the .pdf.

First, what is "terrorism" in the eyes of the Eminent Jurists:


(p.21, .pdf)
....criminal acts....
....
in describing terrorism, it is important to focus on the act itself and not the actor. ... In principle, anyone can commit terrorist acts.

Second, what is the primary tool against terrorism:


(p.29, .pdf)
Criminal law is the primary vehicle to address terrorism ....

Third, is the US legal position incorrect:


(p.174, .pdf)
Erroneously conflating acts of terrorism with acts of war, the United States Government proclaimed a "war on terror", thereby misapplying war rules to situations not involving armed conflict as understood by international humanitarian law.

The report's entire Chapter Three (start p.63, .pdf) is devoted to this argument. Note this is not a semantic argument that "the war on terror" would be better named something else. It argues that the laws of war should not apply generally to actions taken against AQ, Taliban, etc.

After reading this report, I was left with the serious question of how many allied nations are on the same page as the US. If they are not, they really cannot be fighting in the same war or world - either they are correct or we (US) are correct. If the nature of the war is not as we see it, then we are making a serious error in CvC terms. And, if the nature of the war is not as they see it, we would make a serious error in adopting their viewpoint.

There is a very basic dichotomy here, which goes well beyond the many legal issues and points raised in the report.

I note that one of the panelists is Mary Robinson (http://en.wikipedia.org/wiki/Mary_Robinson). Other than being Irish and a lawyer, I expect the twain shall neer meet.

Ken White
02-19-2009, 09:44 PM
...The report's entire Chapter Three (start p.63, .pdf) is devoted to this argument. Note this is not a semantic argument that "the war on terror" would be better named something else. It argues that the laws of war should not apply generally to actions taken against AQ, Taliban, etc.No jurist I but that seems sort of sweeping. I'd be inclined to say the 'laws of war' might need a relook. Still, I understand their point of view and it stems, as you say, from this:
After reading this report, I was left with the serious question of how many allied nations are on the same page as the US. If they are not, they really cannot be fighting in the same war or world - either they are correct or we (US) are correct. If the nature of the war is not as we see it, then we are making a serious error in CvC terms. And, if the nature of the war is not as they see it, we would make a serious error in adopting their viewpoint.In retrospect, the adoption of the phrase "War on Terror" was probably a mistake. At the time, I thought it would illustrate to the public that if the other guy thinks he's at war -- and he does -- and you do not think you are, that places you at a disadvantage. Obviously, I erred and most people choose not to look at it in that light.

When we rolled into the 'long war' I knew that was a mistake. Americans (most people, in fact) and long war don't mesh well...

I think you're correct and I opt for your second choice -- the war is not as they see it and we would make a serious error in adopting their viewpoint.

Thanks again for keeping up with and posting all this.

jmm99
02-20-2009, 04:12 AM
from Ken
I'd be inclined to say the 'laws of war' might need a relook.

I agree, but my path is quite different from that of the Eminent Jurists. The need is for development of Common Article 3 jurisprudence, since that article (together with the definition of Powers to an armed conflict, and the requirements imposed on such Powers, in Common Article 2) expressly deal with non-State actors in those conflicts. So, while I think FM 27-10 needs an update to include much more substance and procedure to cover non-State actors, that old bugger is still on the right track.

The Eminent Jurists are very much committed to the essential notion of States (and to some extent Super States). Hence, violence by non-State actors are (to them) presumptively criminal acts.

-----------------

from Ken
I think you're correct and I opt for your second choice -- the war is not as they see it and we would make a serious error in adopting their viewpoint.

Very simply, my view is that 9/11 was a planned military operation against strategic targets using unconventional means (and violating a number of the laws of war as we know them - not violating the laws of war as AQ knows them). So also, the AQ attacks back to the 1993 WTC operation.

That is clearly not the view in many other nations (e.g., the UK official mentioned in the report who saw the London attacks as a police problem - not an armed conflict in the UK). To people who see this as a police and criminal law problem, direct action (targeted killings) are outrageously illegal - police arrest people and do not kill them; self-defense excepted.

My point is that, if a nation is committed to seeing these armed conflicts (as I view them) as not that, but as a criminal law problem, that nation can be at most a very reluctant ally if they join in military operations. I'd suggest that we (US) would be better off without such allies in military operations.

That does not mean that such nations cannot be allied in criminal law areas, where there are common interests. Obviously, criminal prosecutions are a valuable tool in dealing with the softer side (more or less civilian infrastructure) of the non-State actors who are engaged in armed conflicts with us.

I'd add that the concept of a combatant, when dealing with non-State actors, needs some very careful thought and development. The infrastructure (which may never pick up a rifle or a bomb directly) is more important than their Willies and Joes.

I'd also add that the emphasis on using the criminal law as the primary tool to defeat groups engaged in armed conflicts (as I view them) can have a very detrimental effect on the ordinary criminal law jurisprudence in a nation taking that approach. As the report certainly proves, many countries have used "counter-terrorism" as a reason to institute draconian measures - which are then used against non-terrorists. Thus, the report provides numerous examples of why hard cases make bad law - in countries that have used their criminal laws as the primary tool to "counter terrorists".

jmm99
02-20-2009, 09:41 PM
or, have we entered a phase where no political advantage will be made of the impending release of Binyam Mohamed (http://www.google.com/hostednews/afp/article/ALeqM5hvnBhP6pATzJatqQ1HDpJ8gUXFug).


AFP
Britain, US agree on return of Guantanamo detainee
5 hours ago

LONDON (AFP) — Britain and the US have agreed on the transfer of ex-British resident Binyam Mohamed from detention in Guantanamo Bay "as soon as the practical arrangements can be made," the Foreign Office said Friday.

The announcement -- of what would be the first release from Guantanamo since US President Barack Obama took office -- came shortly after The Washington Post newspaper reported that Mohamed could be flown to Britain as early as Monday.

"The UK and US governments have reached agreement on the transfer of Mr Binyam Mohamed from Guantanamo Bay to the UK. He will be returned as soon as the practical arrangements can be made," a Foreign Office statement said.

"This result follows recent discussions between the British and US governments and a medical assessment, undertaken by a UK doctor, that Mr Mohamed is medically fit to return."

M. Mohamed will have more than his 15 minutes of fame, as will his legal counsel and many supporters. He and others will "testify" at length on what was done to him - all in the absence of cross-examination and any evidence to the contrary. The media will have a field day - c'est la vie !

jmm99
02-21-2009, 05:06 AM
The DoJ filed an extremely short response (http://www.scotusblog.com/wp/wp-content/uploads/2009/02/us-reply-re-bagram-2-20-09.pdf)in its final briefing in the Bagram habeas cases (http://www.scotusblog.com/wp/us-no-habeas-rights-at-bagram/) pending before Judge Bates.


U.S.: No habeas rights at Bagram
Friday, February 20th, 2009 5:27 pm | Lyle Denniston
....
The Obama Administration, in a full embrace of a controversial Bush Administration policy, told a federal judge on Friday afternoon that some 600 detainees being held by the U.S. military at Bargram airbase in Afghanistan have no right to go to U.S. courts to challenge their confinement. In a one-paragraph reply to District Judge John D. Bates, the Justice Department said: “Having considered the matter, the Government adheres to its previously articulated position.”
.....
The filing means that, at least for the time being, the new Administration will treat Bagram prisoners differently than the 245 detainees still being held at Guantanamo Bay, Cuba. President Obama has ordered the closing of Guantanamo within a year and, in the meantime, his government is conducting an individual-by-individual review of the status of those at the Navy prison on the island of Cuba. There is now no similar process for those at Bagram, and White House officials have told reporters not to expect any change at the Afghan base for at least six months.

One might expect that Judge Bates (as a District judge) will dismiss the habeas petitions, since the post-WWII SCOTUS Johnson case (not expressly overruled by Boumediene) is factually on-point.

davidbfpo
02-21-2009, 12:40 PM
Much reporting on the expected arrival of G-bay prisoner, an Ethiopian by birth, Muslim convert (whilst in the UK) and UK resident, Binyam Mohammed and here is the BBC News link: http://news.bbc.co.uk/1/hi/uk/7903330.stm

Note the reviewer of terrorist law has commented too; very odd IIRC as he does not normally comment on individual cases. Better reported in this: http://www.telegraph.co.uk/news/newstopics/politics/4741236/David-Miliband-under-pressure-over-role-of-British-spies-in-torture-of-terrorism-suspects.html

(JMM I will try to answer your questions posed another time).

davidbfpo

davidbfpo
02-22-2009, 01:05 PM
A real "can of worms" appears on the near horizon, with allegations that British government agents (MI5 Security Service / MI6 Secret Intelligence Service) had a role in interviews in Pakistan before ISI used torture: http://www.guardian.co.uk/world/2009/feb/22/torture-pakistan-human-rights

davidbfpo

davidbfpo
02-22-2009, 01:15 PM
Has any UK court considered the status of battlefield detainees in light of the GCs, especially Common Article 3 ? I suppose even more basic - is there a specific military policy governing detainment by UK forces in Iraq and Astan ?

JMM,

I can only recall one case where a UK court has got involved in the military detention of persons in Iraq and this was tied up in the failure to reach a MOU on the UK's role in Iraq. Here is the judgement: http://business.timesonline.co.uk/tol/business/law/reports/article5654450.ece

I know there are other stories on the case, but as a lawyer that should suffice. Wayback I can recall persons were often detained, with no Iraqi law & order, they were released. This was reported after a court martial for prisoner mistreeatment.

Detention in Afghanistan has a far lower public profile, although Ross Kemp's TV series has referred to fairly swift Afghan refusal to charge a suspected Taliban fighter a joint patrol detained.

davidbfpo

jmm99
02-22-2009, 08:31 PM
(from court opinion)
On the facts, the UK was not before December 31, 2008, exercising any power or jurisdiction in relation to the applicants other than as agent for the Iraqi court. It was not exercising, or purporting to exercise, any autonomous power of its own as a sovereign state. After December 31, 2008, British forces enjoyed no legal power to detain any Iraqi. Had they done so, the Iraqi authorities would have been entitled to enter the premises occupied by the British and recover any such person so detained.

This is a different approach (acting at most as a agent for the local rule of law) than that of the US. In terms of UK laws of war, undoubtedly correct. There is definitely a dichotomy in how different nations define the laws of wars as to detainees and combatants.

PS: As to Binyam Mohamed (now multiplied by 10 or more UK-Paki cases), I said in one of my initial posts about the case that it could be somewhat "messy". I expect that the fallout in the UK will be greater than here. Our fallout will come when the "KSM Five" cases are reviewed. Where that will go will depend on the evidence - which hopefully will be heard in Federal court at some point.

davidbfpo
02-23-2009, 02:15 PM
The released G-Bay prisoner, Binyam Mohammed, after his arrival in the UK has issued a statement and on the BBC News shown: http://news.bbc.co.uk/1/hi/uk/7905939.stm

Carefully phrased and plenty to indicate "a can of worms" about to open. Not withstanding our special relationship with the USA, see summary on that, by BBC Security Correspondent: http://news.bbc.co.uk/1/hi/uk_politics/7870801.stm

davidbfpo

Schmedlap
02-23-2009, 03:17 PM
Then there are thousands of other prisoners held by the US elsewhere around the world, with no charges, and without access to their families.

Wow. Between torture sessions, he was apparently getting briefed on our operations worldwide. Then again, maybe the CIA finally realized that PowerPoint briefings really are torture.


It is still difficult for me to believe that I was abducted, hauled from one country to the next, and tortured in medieval ways - all orchestrated by the United States government.

It's still difficult for me to believe that, as well. I look forward to seeing the evidence. It will not shock me if interrogations crossed the line occasionally, but I will be surprised if that even remotely began to approach being "tortured in medieval ways." I am very curious to find out what he regards as "medieval," especially given that he was born in Ethiopia. My hunch is that what most privileged westerners would regard as "medieval" would be regarded in Ethiopia as "slight discomfort." And with that in mind, and given that his statement clearly shows the handiwork of a lawyer, I can't help but think that this is the start of a propaganda circus. Call me cynical.

jmm99
02-23-2009, 08:12 PM
from Schmedlap
And with that in mind, and given that his statement clearly shows the handiwork of a lawyer, I can't help but think that this is the start of a propaganda circus. Call me cynical.

Gee, given the lead to post #191, and the fact that I am a lawyer, what does that make me. :) BTW, NY Times piece is here (http://www.nytimes.com/2009/02/24/world/europe/24gitmo.html?_r=2&ref=world).

Don't jump too quick, young CPT, cuz there is probably some fire underneath all of this smoke. There's a lot on this case that I haven't mentioned because the sources were non-comfirmable; and, frankly, there is a lot of classified information involved (plane numbers, dates, itineraries, etc.). A connected civil case (http://www.aclu.org/safefree/torture/36935prs20080925.html) has been dismissed for national security reasons.

That having been said, the press agents (whether lawyers or not) are probably going to engage in overkill - Binyam will become the most tortured person in human history, etc., etc. You will not likely see much of what we might call "evidence", but we'll see a lot of statements.

There may be a silver lining if Binyam's proponents overdo it. First of all, if they go well beyond the facts (whatever they are), they might lose some credibility. Second, the methods which will be claimed or proven to be used on Mohamed will probably make the methods used on KSM look relatively mild.

I would have liked to have seen Mohamed's case tried and all the evidence reviewed by a trier of fact - dirty laundry and all. But that will not happen. :(

Schmedlap
02-23-2009, 10:33 PM
I agree. That's why I stated that it wouldn't surprise me if some interrogations crossed the line a little bit. But that statement is clearly a carefully drafted letter and foreshadows a media and propaganda whirlwind to come. I think you're right - there will probably be some unfortunate evidence and these clowns will likely overstep the truth, as well. It's going to be a politically-motivated circus waged by all sides, where everybody knows that it's a circus, but everyone keeps playing along because the last side to strike and the first side to quit will be at a disadvantage.

Ken White
02-23-2009, 10:38 PM
there's also much money to be made but I won't add that as I don't want JMM to think it's a smack aimed at him -- which it emphatically would not be.

jmm99
02-24-2009, 06:23 AM
if you alleged that some lawyers (and press agents) are in it for money - either directly, or because it will give them fame, which will later translate to money.

Some, however, will be in it because of beliefs and/or because they hate the prior administration with all their hearts.

Ken White
02-24-2009, 06:48 AM
on all counts. Wonder who'll do the book contract... :rolleyes:

jmm99
02-25-2009, 07:27 PM
Five former Gitmo detainees, repatriated to France and who were convicted on French terrorism charges in 2007, have had those convictions overturned (http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2009/02/24/international/i060544S57.DTL) by a French intermediate appeals court.


Paris appeals court acquits ex-Guantanamo inmates
By JAMEY KEATEN, Associated Press Writer
Tuesday, February 24, 2009

(02-24) 12:50 PST PARIS, France (AP) --

A Paris appeals court on Tuesday overturned the terrorism convictions of five former detainees at Guantanamo Bay, ruling French police agents were out of line in questioning them at the U.S. prison camp.

France is among the few Western countries to prosecute nationals who have returned home from Guantanamo — and the ruling marks the latest high-profile foreign disavowal of the secretive center that President Barack Obama's administration wants to shutter for good.

The appeals court ruled that agents from the French counterterrorism agency DST who questioned the five inmates at Guantanamo in 2002 and 2004 had overstepped their roles. Overturning a lower court's conviction, the appeals court said DST could not act as both a spy agency and a judicial police service, the body French law says is authorized to interrogate detainees.

State prosecutors said they would appeal to the highest French court, the Court of Cassation.

The logic of the appellate court closely follows the logic of the Eminent Jurists discussed above. Note that the sentence involved was 1 year.

jmm99
02-25-2009, 07:38 PM
continues here (http://wire.antiwar.com/2009/02/24/uk-guantanamo-detainee-enjoys-1st-day-of-freedom-4/) and here (http://www.independent.co.uk/news/uk/home-news/guantanamo-veteran-stopped-from-attending-reunion-party-1631357.html). Besides giving one a warm, fuzzy feeling, both articles provide an interesting factoid:


(from the first link)
Jaralla Saleh Mohammed Kahla al-Marri, a Qatari, said he had been held at the Colnbrook Immigration Removal Center since Monday over a visa irregularity.

In a telephone interview from the center, al-Marri said he couldn't understand his treatment. He said he traveled to Britain a few weeks ago without problems to take part in a speaking tour about his experiences at the prison camp.

"They said 'We didn't know you were in Guantanamo,'" al-Marri said "All the world, they know. (The British government is) the last to know? It's a shame."

Al-Marri was detained by U.S. forces in Afghanistan in 2001 on suspicion of links to the Taliban and al-Qaida. But no charges were ever brought against him.

His brother, Ali al-Marri, is currently being held in the brig at Charleston Naval Base, in South Carolina.

Of course, none of these folks (plus Moazzam Begg, also mentioned) have any pre-Gitmo links - just a reunion of former Gitmo detainees who want to sit over tea and biscuits (cookies). And, I have a bridge to sell ......

davidbfpo
02-25-2009, 10:06 PM
JMM,

Very odd the detention of the Qatari, Jaralla Al-Mari, on 23/2/09 apparently on his exit from the UK; for some months IIRC he has been featured in the publicity for a UK tour to speak on G-Bay organised by Cageprisoners campaign group, alongside Mozzam Begg (ex-G-Bay UK prisoner), Omar Deghayes (ex-G-bay prisoner, Libyan origin and UK resident) and Christopher Arendt (ex-US Army guard).

The main website run by Begg is: http://www.cageprisoners.com/index.php (their home page has problems loading) and the UK tour is: http://www.cageprisoners.com/campaigns.php?id=818 note lengthier spelling of Al-Mari's name.

Needless to say there are many hits via Google on the history of all those named.

davidbfpo

jmm99
02-26-2009, 03:39 AM
quite a tour. I expect more of this, not only by released detainees so far named, but by others - e.g., Mohamed Farag Bashmilah (http://www.alternet.org/rights/127847/i_was_illegally_detained_by_the_u.s._government_an d_held_in_cia-run_%22black_sites%22/).

Another former Gitmo guard, making the US media circuit, is Brandon Neely (http://www.harpers.org/archive/2009/02/hbc-90004409), whose statement is here (http://humanrights.ucdavis.edu/projects/the-guantanamo-testimonials-project/testimonies/testimonies-of-military-guards/testimony-of-brandon-neely). Neely (http://newsbusters.org/blogs/jack-coleman/2009/02/19/rachel-maddow-oversells-former-gitmo-guards-allegations-abuse) is presently active in the Houston chapter of Iraq Veterans Against the War.

The journalist who has followed the Gitmo cases most closely (many articles and a book) - from the detainees' viewpoint - is UK resident Andy Worthington (http://www.andyworthington.co.uk/about-me/), who lives in London.

I expect this cottage industry to grow - exponentially if Sen. Leahy's proposed Truth & Reconciliation Commission flies.

------------------------

Ex-guard Arendt is also connected with IVAW (http://www.cageprisoners.com/articles.php?id=27426), and testified last year at the Winter Soldier Hearings (http://ivaw.org/wintersoldier). The latter is also a road show - in Austin TX on 28 Feb. IVAW is an affiliate of Veterans for Peace (http://www.veteransforpeace.org/about_vfp.vp.html), whose board is bio'd here (http://www.veteransforpeace.org/Board_of_Directors.vp.html).

Another affiliate is VVAW (http://www.vvaw.org/) (Vietnam Veterans Against the War), which is a splinter from a splinter of the original VVAW of the late 60s and early 70s. Barry Romo (http://www.vvaw.org/veteran/article/?id=189), who spoke at 2008 Winter Solder (http://www.warcomeshome.org/content/barry-romo%2526%2523039%3Bs-vvaw%2526%2523039%3Bs-opening-remarks-winter-soldier-2008), is probably its best known member from his role in 1971 Winter Soldier (http://www2.iath.virginia.edu/sixties/HTML_docs/Resources/Primary/Winter_Soldier/Units/3d_World_roster.html).

None of these groups should be confused with VVA (http://en.wikipedia.org/wiki/Vietnam_Veterans_of_America) (Vietnam Veterans of America), which is congressionally chartered under Title 36, USC - VVA webpage (http://www.vva.org/).

jmm99
02-26-2009, 10:13 PM
Originally, al-Marri was charged by John Ashcroft under Federal criminal law. Pres. Bush overruled him; the charges were dismissed and al-Marri was detained under the President's executive order. The Obama administration may reverse course and attempt to restore the criminal prosecution as Lyle Denniston reports here (http://www.scotusblog.com/wp/court-trial-for-al-marri/#more-8808).


Court trial for Al-Marri?
Thursday, February 26th, 2009 2:25 pm | Lyle Denniston
....
The American Civil Liberties Union, citing news stories, reported Thursday that the Justice Department will shortly file terrorism charges and hold a trial in civilian court of a Qatari national, Ali Saleh Kahlah Al-Marri — the only detainee taken prisoner in the U.S. and still being held in this country. ...
..... [a summary of the al-Marri proceedings follow] ....

The ACLU news release is here (http://www.scotusblog.com/wp/wp-content/uploads/2009/02/aclu-news-release-2-26-). The Washington Post story is here. (http://www.washingtonpost.com/wp-dyn/content/article/2009/02/26/AR2009022601892.html?hpid=topnews)

If the indictment is filed, the SCOTUS appeal, not far off from being decided, will probably be moot and dismissed (based on recent decisions). There may be problems in prosecuting in Federal court because of the prior dismissal of the original Federal charges (mentioned in prior posts); although the original charges (credit card fraud and making false statements to the FBI) are different from the new charges (providing material support to al-Qaeda).

jmm99
02-27-2009, 07:56 PM
The DoJ, via the Federal attorney for the central district of Illinois, has filed a two count indictment (http://www.scotusblog.com/wp/us-charges-al-marri-seeks-end-of-court-case/) against al-Marri.


U.S. charges Al-Marri, seeks end of Court case
Friday, February 27th, 2009 1:39 pm | Lyle Denniston
.....
A federal grand jury in Peoria, Ill., has charged a Qatari national held in the U.S. on terrorism crimes, and the Justice Department said Friday it will ask the Supreme Court to dismiss the prisoner’s pending appeal, now set for a hearing April 27.
.....
The Department said the Solicitor General’s office would move, probably later Friday, to have Al-Marri’s petition dismissed in the wake of the indictment. But Jonathan Hafetz, Al-Marri’s lead lawyer, said: “Despite this indictment, the Obama administration has yet to renounce the government’s asserted authority to imprison legal residents and U.S. citizens without charge or gtrial. We will continue to pursue Mr. Al-Marri’s case before the Supreme Court to make sure that no American citizen or lawful resident will ever again be subjected to such treatment.”

The indictment is here (http://www.scotusblog.com/wp/wp-content/uploads/2009/02/al-marri-indictment-2-27-09.pdf); the DoJ press release is here (http://www.scotusblog.com/wp/wp-content/uploads/2009/02/al-marri-doj-release-feb27-09.rtf); and the ACLU press release is here (http://www.scotusblog.com/wp/wp-content/uploads/2009/02/aclu-release-al-marri-feb-27-09.rtf).

The indictment is a bare notice pleading charging al-Marri with providing “material support” and "resources", specifically “personnel” (which could include himself) to AQ, and with conspiracy to provide such support

This case will now take two different paths:

1a. SCOTUS will have to decide whether the case should continue. Normally, these facts would render the case moot and it would be dismissed. Since the case presents the issue of whether habeas corpus can be suspended for a non-citizen, but legal US resident, the Court may decide to hear that issue; or,

1b. Even if habeas is not suspended, can a non-citizen resident or even a citizen be detained (even if not charged with a crime) under Common Article 3 of the GCs as an unlawful enemy combatant ? Note that Common Article 3 was originally aimed at covering domestic insurgencies, and does not distinguish whether the insurgent is a citizen, legal alien resident or illegal alien resident of the nation involved in the armed conflict.

2. Al-Marri will have to plead to the indictment; but, since it is a bare notice pleading, the defense will most likely request a bill of particulars; and will certainly engage in some pre-trial discovery. One defense may be that the acts to be proven against al-Marri now were the same acts underlying the initial credit card fraud charge (dismissed with prejudice). If the acts now charged are different, that defense would not be available.

davidbfpo
03-01-2009, 08:44 PM
More speculation on Binyam Mohammed's allegations of torture will force an investigation in the UK: http://news.bbc.co.uk/1/hi/uk/7917543.stm

davidbfpo

jmm99
03-02-2009, 12:38 AM
from your BBC link
Lord Carlile told the Sunday Times that a judicial inquiry was needed to look into the claims made Mr Mohamed.

What would a UK judicial inquiry look like ?

For example, in Michigan procedure, we have what is called a one-man grand jury (a judge). He can authorize police investigations, subpeona witnesses, order searches and production of documents, etc. He then can issue indictments if criminal conduct is found. Those one-man grand jury proceedings are secret (like the common law grand jury), until indictments are issued.

jmm99
03-03-2009, 08:28 PM
at this DoJ webpage (http://www.usdoj.gov/opa/documents/olc-memos.htm).

Seven memoes (msotly dealing with detention issues) from 2001-2002 are now available after their release by AG Holder:


Memorandum Regarding Constitutionality of Amending Foreign Intelligence Surveillance Act to Change the "Purpose" Standard for Searches (09-25-2001)

Memorandum Regarding Authority for Use of Military Force to Combat Terrorist Activities within the United States (10-23-2001)

Memorandum Regarding Authority of the President to Suspend Certain Provisions of the ABM Treaty (11-15-2001)

Memorandum Regarding the President's Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations (03-13-2002)

Memorandum Regarding Swift Justice Authorization Act (04-08-2002)

Memorandum Regarding Determination of Enemy Belligerency and Military Detention (06-08-2002)

Memorandum Regarding Applicability of 18 U.S.C. § 4001(a) to Military Detention of United States Citizens (06-27-2002)

Note that two later memoes in 2008 and 2009 (also available at the above link) "refine" the previous memoes in part:


Memorandum Regarding Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2001 (01-15-2009)

Memorandum Regarding October 23, 2001 OLC Opinion Addressing the Domestic Use of Military Force to Combat Terrorist Activities (10-06-2008)

Since the last two memoes represent the final position of the Bush administration - and reflect its practices after 2002, the earlier memoes must be taken with a grain of salt. That is, they are not evidence of what was actually done, or even planned; but do reflect the legal opinions of their authors at the time.

jmm99
03-06-2009, 07:19 PM
No surprise here in a short article (http://www.scotusblog.com/wp/al-marri-overruled/) and short order (http://www.scotusblog.com/wp/wp-content/uploads/2009/03/order-list-2.doc).


Al-Marri detention case ended
Friday, March 6th, 2009 12:13 pm | Lyle Denniston
...
The Supreme Court on Friday wiped out a lower court ruling that gave the President the authority to detain indefinitely as terrorism suspects individuals living legally in the United States. The order also approved transfer of Ali Saleh Kahlah Al-Marri from military custody to civilian custody for a trial on criminal charges in a regular federal court, presumably in Illinois. ...
....
The Court’s action ended the Qatari national’s appeal in Al-Marri v. Spagone (08-368) that the Court had agreed to hear. Thus, the hearing set for April 27 will not be held.

This result leaves for another day settlement of the issue: Can a non-citizen resident or even a citizen be detained (even if not charged with a crime) under Common Article 3 of the GCs as an unlawful enemy combatant ?

Common Article 3 was originally aimed at covering domestic insurgencies, and does not distinguish between whether the insurgent is a citizen, legal alien resident or illegal alien resident of the nation involved in the armed conflict.

The clearest voice on this issue, as applied to citizens, has been Justice Scalia, who said "NO" - either release or charge criminally. He took no position as to legal alien residents. Justice Jackson, in the post-WWII Johnson case, suggested that the same habeas rules apply to citizens and legal alien residents; but that non-resident aliens (Germans) could be detained in an American prison located in Germany. The Johnson case is very much on point re: the Bagram detainees.

davidbfpo
03-07-2009, 11:30 PM
Binyam Mohammed has started to talk in the UK; primarily to the "right leaning" Mail on Sunday: http://www.dailymail.co.uk/news/article-1160238/How-MI5-colluded-torture-Binyam-Mohamed-claims-British-agents-fed-Moroccan-torturers-questions--WORLD-EXCLUSIVE.html . Note the editorial comment which is scathing that torture was used: http://www.dailymail.co.uk/coffeebreak/chat/article-1160307/MAIL-ON-SUNDAY-COMMENT-Nobodys-hero-whos-Binyam.html . Story picked up by the BBC: http://news.bbc.co.uk/1/hi/uk/7930708.stm . A central allegation is that the UK Security Service (MI5) knew he was being tortured.

jmm99
03-11-2009, 12:13 AM
KSM and his 4 companions have filed a six-page response in the Gitmo MCA proceeding (stayed by the Obama administration). From the UK Guardian (http://www.guardian.co.uk/world/2009/mar/10/guantanamo-detainees-september-11-2001):


Five Guantánamo detainees claim responsibility for September 11 attacks
• Men call accusations 'a badge of honour'
• Pentagon confirms New York Times report
Daniel Nasaw in Washington
guardian.co.uk, Tuesday 10 March 2009 14.30 GMT

Five accused planners of the September 11 2001 terrorist attacks on the United States have said they are proud of the effort that killed nearly 3,000 people and called it a model of Islamic action.

In a filing with the Guantánamo Bay military commission trying them, the alleged co-conspirators describe themselves as "terrorists to the bone".

"To us, they are not accusations," the document reads. "To us they are a badge of honour, which we carry with honour. Many thanks to God, for his kind gesture, and choosing us to perform the act of Jihad for his cause and to defend Islam and Muslims".

The document, titled The Islamic Response to the Government's Nine Accusations, bears the names Khalid Sheikh Mohammed, Walid Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali and Mustafa Ahmed Al-Hawsawi, all of whom are currently held in a high-security camp at Guantánamo Bay. ....

The MCA order (simply entering and publishing the document) and the six-page response is here (http://image.guardian.co.uk/sys-files/Guardian/documents/2009/03/10/gitmofiling.pdf).

jmm99
03-13-2009, 02:30 AM
Rasul v Bush (2004) was one of the original habeas cases. After a successful result there, Rasul began a civil tort action against Don Rumsfeld et al. That case has generally been unsuccessful, but was remanded by SCOTUS for reconsideration of the issues in light of all the changes in detainee law.

That case is nearing decision in the DC Circuit (one more set of short reply briefs to be filed by 23 Mar). The DoJ brief is the first merits position taken by the Obama administration concerning Gitmo torture claims (http://www.scotusblog.com/wp/more-rights-claimed-for-detainees/).


U.S. opposes torture lawsuit
Thursday, March 12th, 2009 3:52 pm | Lyle Denniston
....
The Obama Administration, taking its first position in a federal court on claims of torture of Guantanamo Bay detainees, urged the D.C. Circuit Court on Thursday to reject a lawsuit by four Britons formerly held there. In addition, the new filing argued that a recent appeals court ruling makes clear that “aliens held at Guantanamo do not have due process rights.”

Moreover, the document called for a sweeping ban on lawsuits against U.S. military officials, claiming constitutional violations by such officials. Allowing such lawsuits “for actions taken with respect to aliens during wartime,” it said, “would enmesh the courts in military, national security, and foreign affairs matters that are the exclusive province of the political branches.” ....

The detainees' brief is here (http://www.scotusblog.com/wp/wp-content/uploads/2009/03/rasul.pdf); and the DoJ brief is here (http://www.scotusblog.com/wp/wp-content/uploads/2009/03/rasul-appellees.pdf).

davidbfpo
03-13-2009, 11:19 AM
Below are two paragraphs taken from this longer general article:

http://www.telegraph.co.uk/comment/columnists/concoughlin/4980955/Britain-is-fighting-a-war---and-we-are-too-soft-on-our-enemies.html


'He might, as he insists, be innocent of any wrongdoing. But the risks of taking the protestations of innocence of a former Guantánamo detainee at face value have been graphically demonstrated this week by the revelation that another inmate, Abdullah Ghulam Rasoul, has re-emerged as one of the Taliban's most effective commanders in southern Afghanistan.

During the six years he was held at Guantánamo, Rasoul, now known as Mullah Abdullah Zakir, managed to convince his American interrogators that he had never held a military command, even though it turns out he was a high-ranking commander close to Mullah Omar, the Taliban's supreme leader. Rasoul was eventually released after claiming he wanted to return to his family and farm. British officials believe he is the mastermind behind the deadly surge in roadside bombings in Helmand since last spring'.

davidbfpo

davidbfpo
03-13-2009, 11:24 AM
Binyam Mohammed has been interviewed by the BBC, with his legal adviser present and blames the UK for his alleged torture: http://news.bbc.co.uk/1/hi/uk/7940958.stm

davidbfpo

Rex Brynen
03-13-2009, 12:39 PM
Activists defy law to buy plane ticket for exiled Canadian (http://www.theglobeandmail.com/servlet/story/RTGAM.20090312.wabdulrazik0312/BNStory/International/home?cid=al_gam_mostview)


LES PERREAUX AND BILL CURRY
From Friday's Globe and Mail
March 12, 2009 at 9:59 PM EDT


MONTREAL and OTTAWA — More than 100 Canadians have chipped in airfare and exposed themselves to criminal prosecution in an effort to force Ottawa to allow a Canadian citizen to fly home from Sudan, where he's been stranded since being labelled an al-Qaeda operative by the United Nations.

The donors, including teachers, students and a couple of dozen university professors from across Canada, bought a $997 airline ticket for Abousfian Abdelrazik.

Now, they say, it's up to the Harper government to live up to a promise to give him travel documents for his April 3 flight from Khartoum to Toronto via Abu Dhabi.

Mr. Abdelrazik, 47, is lost in a legal no-man's land. Canadian and Sudanese authorities have cleared him of being a terrorist suspect after years of questioning, imprisonment and torture.

But he remains on the UN terror list at the behest of the United States, according to his lawyer.

The Canadian government gave Mr. Abdelrazik “temporary safe haven” at the Khartoum embassy nearly a year ago.

Foreign Affairs spokeswoman Emma Welford would not say whether emergency travel documents will be issued, as promised, saying only that Canada is obliged to enforce a United Nations travel ban on Mr. Abdelrazik.

But that travel ban specifically permits citizens to return to their home countries.

jmm99
03-13-2009, 08:09 PM
I found the Telegraph article cited by David to be excellent. Having said that, it is up to the people of the UK (and of Canada, since the same issues are present in the case cited by Rex) to decide how they are going to address those issues. Our experiences with similar cases (the good, the bad and the ugly) may be instructive, but the decisions in the end are theirs and not ours.

As to the Rasoul case, we must be aware that the very simple issue was whether he was an unlawful enemy combatant subject to detention - not whether he was guilty of war crimes, or subject to "anti-terrorist" laws. The facts (despite his statement, which was simply not truthful) compelled the first three reviewing panels to conclude that his detention was justified.

The final reviewing panel, and Gordon England, determined (for reasons which were totally redacted) that he should be released. Perhaps, that decision was solely political, perhaps not - the record does not allow us to make that determination. As events have turned out, that decision was a cock up.

As to Rasoul himself, it is easy to call him a lying terrorist. My own take on Rasoul (which to me is more scary) is that he was simply a good soldier in his army, who was aware that he had to survive, evade, resist and escape - and managed to do so.

That was all in accord with his Laws of War - which to him and other AQ and Taliban members are a matter not only of law, but of religion. As KSM stated in his "Islamic Response" (link (http://image.guardian.co.uk/sys-files/Guardian/documents/2009/03/10/gitmofiling.pdf)):


(p.3 .pdf file)
Also, as the prophet has stated: "War is to deceive."

Taking this KSM view into account, the Telegraph article is still correct in this conclusion:


The worldwide campaign against Islamist-inspired militancy is highly complex. But if the West to wants to prevent further terror attacks, we must first distinguish between those who are on our side, and those who are not.

But, as the Rasoul case illustrates, that distinguishment is subject to error - especially if everything said by detainees is taken at face value. And, discernment is also impeded by having to take everything our government says at face value - the redacted decision to release Rasoul is simply one example of too many we have so far seen on this thread.

Common Article 3 of the GCs (along with several other articles in GC III and IV) require that detention status be determined by an impartial tribunal (not necessarily a full-fledged domestic judicial court) - based on evidence. That requirement is making more and more sense to me, where these cases are being "tried and decided" based on statements by government (and "shadow government") officials, the detainees and their lawyers.

Binyam Mohamed (link in David's last post) is a good example - the propaganda circus continues. I have stated before and reiterate that I would have liked to see the BM case tried before a tough impartial judge (military or civilian) to determine (1) whether he should be detained as an unlawful enemy combatant; and (2) whether he was guilty of war crimes, "terrorist" crimes, etc. If that trial reached issues of unlawful rendition and torture, so be it.

It is perfectly conceivable that a judge could have found against BM on issues (1) and (2) - and also could have found that both unlawful rendition and torture occured. If the latter finding was made, the judge's duty would then have been to refer the case for Federal prosecution against the persons responsible for the renditions and torture. That is how our (US) system is supposed to work.

Obviously, political decisions were at work in the BM case (by both the Bush II and Obama administrations). So, here also, we are left with a media "trial".

jmm99
03-13-2009, 08:39 PM
I start this off by saying that this is a Canadian issue to be decided by Canadians - not by a USian whose last Canadian resident was his maternal grandfather.

So, my comment is limited. I read the Globe article and all of the Globe's archived articles. As in the BM case, we have a lot of statements and very little evidence (much of the evidence seems to be classified - or at least has not been disclosed).

Therefore, I have no opinion as to whether AA was what we (US) would consider an "unlawful enemy combatant", or whether he went afoul of some "terrorist" law. Judging from the relatively few habeas cases decided after merits hearings, that is a logical position to take (Judge Leon's cases, admittedly dealing with lower level people, have broken roughly 50-50).

If this were a US case (if AA were a US citizen sitting in a US embassy), it would indeed be a lulu. I imagine it would commence as a habeas proceeding in DC District Court - and would also include a count seeking his removal from the "no-fly" list. That aspect of the "War on Terror" is about due for some judicial review.

AA is an interesting case. I would love to know the complete evidence (or lack thereof). Keep us abreast, Rex. Thank you for the link. :)

jmm99
03-14-2009, 12:49 AM
I'll start this with Lyle's analysis (http://www.scotusblog.com/wp/us-defines-its-claim-to-detention-power/) of the new standard, which goes into far more detail than in the excerpt below:


U.S. defines its claim to detention power
Friday, March 13th, 2009 3:04 pm | Lyle Denniston
....
The Obama Administration disclosed on Friday that it will no longer claim the power to detain terrorism suspects under the label “enemy combatant,” even while claiming broad authority to detain those who are a part of terrorist networks or who supplied “substantial support” to such forces. The authority, it said, extends to places other than battlefields if [in] Afghanistan, but did not say where else detainees might be seized.

The document cast[s] aside a claim by the former Bush Administration that the President has detention power solely because of his role as Commander-in-Chief.

It told a federal judge that it is “refining” its claim of detention authority, relying on Congress’ resolution passed after the 9/11 terrorist attacks and on “principles of the laws of war.” It proposed a new definition of that authority, for use as Guantanamo Bay prisoners’ habeas challenges moved forward in federal civilian courts. But it said it may alter its detention policies after a wide-ranging, inter-agency review is completed in about six months.

From the congressional resolution, as “informed by” laws-of-war principles, the Justice Department defined detention authority as aimed at individuals who “substantially supported” terrorist groups or other armed groups, as well as those it directly linked to Al Qaeda and Taliban networks. ....

While everyone (hopefully) is reading Lyle's analysis (and the cited links), I will go about slogging through the links.

Three thoughts came to mind when Fox briefly flashed the definition (confirmed by Lyle's article):


“The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any peson who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.”

1. The term "person" has a much broader meaning than the term "combatant" (as that term is normally defined under the Laws of War as we know them).

2. The word "substantial" ("material" would be a virtual cognate legally) is what we call a "litigation word" - that is, its limits are a mixed question of fact and law in the particular case.

3. The definition is population-centric (persons, which would to me include infrastructure and auxilliary persons, as well as including, but not limited to, "any peson who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces") - as opposed to threat-centric (enemy combatants).

More later.

--------------

See, BW, I do read your screeds.

jmm99
03-14-2009, 01:36 AM
AG Holder filed a personal declaration (http://www.scotusblog.com/wp/wp-content/uploads/2009/03/holder-declaration-3-13-09.pdf) along with the DoJ filing (to be discussed later), which outlined the Obama administration's process re: detention.

The most informative comment to me was on page 1, para 4 (sorry, the .pdf file doesn't allow cut and paste) regarding the general treatment of "individuals" in connection with "armed conflicts" and "counter-terrorism operations". It is no stretch to suggest that this generalized concept could be easily extended to the term VNSA (Violent Non-State Actor), as discussed in another thread (http://council.smallwarsjournal.com/showthread.php?p=68028#post68028).

------------------------------
The DoJ press release (http://www.scotusblog.com/wp/wp-content/uploads/2009/03/doj-news-release-detainees-3-13-09.doc) has as its bottom line:


In its filing today, the government bases its authority to hold detainees at Guantanamo on the Authorization for the Use of Military Force, which Congress passed in September 2001, and which authorized the use of force against nations, organizations, or persons the president determines planned, authorized, committed, or aided the September 11 attacks, or harbored such organizations or persons. The government’s new standard relies on the international laws of war to inform the scope of the president’s authority under this statute, and makes clear that the government does not claim authority to hold persons based on insignificant or insubstantial support of al Qaeda or the Taliban.

In short, if I happen to give ten bucks to a front charity, where the money ends up in AQ's hands, I am not subject to detention. If I hand a $10 grenade to an AQ soldier, that should be a different story - the context will turn out to be the deciding factor.

----------------------------
The press release (http://www.scotusblog.com/wp/wp-content/uploads/2009/03/ccr-release-3-13-09.doc) by the Center for Constitutional Rights, an advocacy group that represents a number of detainees, has a negative view of the new standard:


Obama Administration Offers Essentially Same Definition of Enemy Combatant Without Using the Term

CCR Says New Filings Misinterpret Laws of War and Only Serve to Continue to Hold People Indefinitely

March 13, 2009, New York - In response to this afternoon’s government filing in multiple Guantánamo cases, the Center for Constitutional Rights issued the following statement:

While the new government has abandoned the term “Enemy Combatant,” it appears on first reading that whatever they call those they claim the right to detain, they have adopted almost the same standard the Bush administration used to detain people without charge - with one change, the addition of the word “substantially” before the word “supported.” This is really a case of old wine in new bottles.

Whether in interpreting the laws of war or the AUMF, the government continues to confuse the right to use military force with the right to detain terror suspects indefinitely. It is still unlawful to hold people indefinitely without charge. The men who have been held for more than seven years by our government must be charged or released.

I would non-respectfully suggest that the CCR is confusing what arises under the Laws of War (detention, specifically under Common Article 3 of the GCs) with the Rule of Law (criminal charges under domestic law). That will be the issue - and I believe the lines of engagement are now quite clear.

-----------------------------
The ACLU press release (http://www.scotusblog.com/wp/wp-content/uploads/2009/03/aclu-press-release-3-13-09.html) is equally negative:


Justice Department Adheres To Key Elements Of Bush Administration Detention Policy

FOR IMMEDIATE RELEASE
March 13, 2009

CONTACT: James Freedland, (646) 785-1894 or (212) 549-2666; media@aclu.org

NEW YORK – In a court filing today, the Obama administration argued that detention of prisoners held at Guantánamo is justified even if the individual is captured far from any battlefield and has not directly participated in hostilities. According to the definition offered in the government's brief, individuals who provide "substantial" support to al-Qaeda or the Taliban can be detained.

The following can be attributed to Anthony D. Romero, Executive Director of the American Civil Liberties Union:

"It is deeply troubling that the Justice Department continues to use an overly broad interpretation of the laws of war that would permit military detention of individuals who were picked up far from an actual battlefield or who didn't engage in hostilities against the United States. Once again, the Obama administration has taken a half-step in the right direction. The Justice Department's filing leaves the door open to modifying the government's position; it is critical that the administration promptly narrow the category for individuals who can be held in military detention so that the U.S. truly comports with the laws of war and rejects the unlawful detention power of the past eight years."

Same comment for this as for CCR. When the new standard sinks into the consciousness of the far-left Obama base, they will go ballistic. The regular left of that base, and its center-right, will say "OK". (we'll see how good my crystal ball is).

Caveat: An unresolved SCOTUS issue (most clearly defined by Justice Scalia) is whether a US citizen (or lawful resident alien) can be detained under the Laws of War (assuming that person is a person meeting the new standard); or must be released unless criminal charges are filed. That issue has been avoided by the Bush II and Obama administrations - and by SCOTUS, most recently in the al-Marri case.

George L. Singleton
03-14-2009, 01:44 AM
...was doing during his two term administrations in dealing with the war on terrorism and terrorists.

Be interested in how you see what we do now with released Gitmo terrorist Taliban who is now commander of all Taliban terrorist operations for Kandahar Province in Afghanistan.

When I was a little boy, long ago, pre-TV days, we went on our bikes to Saturday afternoon, often double feature, Western black and white movies. A key statement often heard was "the only good 'Injun is a dead Injun..."

Today's politically correct folk are upset already at my use of historic fact wording, but it's sentiments exist among many who want to win in today's loose as a goose guerilla warfare in Afghanistan.

jmm99
03-14-2009, 02:33 AM
In my not so humble opinion, this is one good brief (13 pages (http://www.scotusblog.com/wp/wp-content/uploads/2009/03/doj-detain-authority-3-13-09.pdf)). While, in the future, I reserve the right to savage the Obama DoJ writings, I do love these 13 pages.

Here are some excerpts (pagination in .pdf):


p.2

Through this submission, the Government is refining its position with respect to its authority to detain those persons who are now being held at Guantanamo Bay. The United States bases its detention authority as to such persons on the Authorization for the Use of Military Force (“AUMF”), Pub. L. 107-40, 115 Stat. 224 (2001). The detention authority conferred by the AUMF is necessarily informed by principles of the laws of war. Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004) (plurality). The laws of war include a series of prohibitions and obligations, which have developed over time and have periodically been codified in treaties such as the Geneva Conventions or become customary international law. See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 603-04 (2006).

The laws of war have evolved primarily in the context of international armed conflicts between the armed forces of nation states. This body of law, however, is less well-codified with respect to our current, novel type of armed conflict against armed groups such as al-Qaida and the Taliban. Principles derived from law-of-war rules governing international armed conflicts, therefore, must inform the interpretation of the detention authority Congress has authorized for the current armed conflict. Accordingly, under the AUMF, the President has authority to detain persons who he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for the September 11 attacks. The President also has the authority under the AUMF to detain in this armed conflict those persons whose relationship to al-Qaida or the Taliban would, in appropriately analogous circumstances in a traditional international armed conflict, render them detainable.

Besides its legal citations being accurate, two things are to be noted: (1) I Law is less developed in the VNSA context, but law exists; and (2) the focus is on persons (more fully developed below into groups of persons) - not on nation-states or formally-recognized armed forces.

After stating the definition (quoted in my first post tonite), the brief goes on to suggest a case by case evaluation - context and evidence:


(p.3)

There are cases where application of the terms of the AUMF and analogous principles from the law of war will be straightforward. It is neither possible nor advisable, however, to attempt to identify, in the abstract, the precise nature and degree of “substantial support,” or the precise characteristics of “associated forces,” that are or would be sufficient to bring persons and organizations within the foregoing framework. Although the concept of “substantial support,” for example, does not justify the detention at Guantanamo Bay of those who provide unwitting or insignificant support to the organizations identified in the AUMF, and the Government is not asserting that it can detain anyone at Guantanamo on such grounds, the particular facts and circumstances justifying detention will vary from case to case, and may require the identification and analysis of various analogues from traditional international armed conflicts. Accordingly, the contours of the “substantial support” and “associated forces” bases of detention will need to be further developed in their application to concrete facts in individual cases.

These general points established, the brief goes on to "persons" who are part of AQ, Taliban or associated groups, with its key points (after I Law justification for use of armed force):


(pp.6-8)

The United States has not historically limited the use of military force to conflicts with nation-states:

[A] number of prior authorizations of force have been directed at non-state actors, such as slave traders, pirates, and Indian tribes. In addition, during the Mexican-American War, the Civil War, and the Spanish-American War, U.S. military forces engaged military opponents who had no formal connection to the state enemy. Presidents also have used force against non-state actors outside of authorized conflicts.

Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047, 2066-67 (2005) (citing U.S. use of military force in the Chinese Boxer Rebellion, against the Mexican rebel leader Pancho Villa, and in the 1998 cruise missile attacks against al-Qaida targets in Sudan and Afghanistan).

Thus, consistent with U.S. historical practice, and international law, the AUMF authorizes the use of necessary and appropriate military force against members of an opposing armed force, whether that armed force is the force of a state or the irregular forces of an armed group like al-Qaida. Because the use of force includes the power of detention, Hamdi, 542 U.S. at 518, the United States has the authority to detain those who were part of al-Qaida and Taliban forces. Indeed, long-standing U.S. jurisprudence, as well as law-of-war principles, recognize that members of enemy forces can be detained even if “they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations.” Ex parte Quirin, 317 U.S. at 38; Khalid v. Bush, 355 F. Supp. 2d 311, 320 (D.D.C. 2005), rev’d on other grounds sub nom., Boumediene v. Bush, 128 S. Ct. 2229 (2008); see also Geneva Convention (III) Relative to the Treatment of Prisoners of War of Aug. 12, 1949, art. 4, 6 U.S.T.S. 3316 (contemplating detention of members of state armed forces and militias without making a distinction as to whether they have engaged in combat). Accordingly, under the AUMF as informed by law-of-war principles, it is enough that an individual was part of al-Qaida or Taliban forces, the principal organizations that fall within the AUMF’s authorization of force.

Moreover, because the armed groups that the President is authorized to detain under the AUMF neither abide by the laws of war nor issue membership cards or uniforms, any determination of whether an individual is part of these forces may depend on a formal or functional analysis of the individual’s role. Evidence relevant to a determination that an individual joined with or became part of al-Qaida or Taliban forces might range from formal membership, such as through an oath of loyalty, to more functional evidence, such as training with al-Qaida (as reflected in some cases by staying at al-Qaida or Taliban safehouses that are regularly used to house militant recruits) or taking positions with enemy forces. In each case, given the nature of the irregular forces, and the practice of their participants or members to try to conceal their affiliations, judgments about the detainability of a particular individual will necessarily turn on the totality of the circumstances.

The brief goes on here to include associated groups, and infrastructure supporters, whether in a "battleground nation" or not - again relying on I Law and Laws of War principles (pp. 8-9). I also like "totality of circumstances" standards.

- continued in next post .....

jmm99
03-14-2009, 03:03 AM
The brief then turns to my beloved Common Article 3 - and takes on the 1977 Protocols and turns them in favor of detention:


(pp.10-11)

For example, Common Article 3 of the Geneva Conventions provides standards for the treatment of, among others, those persons who are part of armed forces in non-international armed conflict and have been rendered hors de combat by detention. Third Geneva Convention, art. 3. Those provisions pre-suppose that states engaged in such conflicts can detain those who are part of armed groups. Likewise, Additional Protocol II to the Geneva Conventions expressly applies to “dissident armed forces” and “other organized armed groups” participating in certain non-international armed conflicts, distinguishing those forces from the civilian population. Additional Protocol II, art. 1(1), 13.

Moreover, the Commentary to Additional Protocol II draws a clear distinction between individuals who belong to armed forces or armed groups (who may be attacked and, a fortiori, captured at any time) and civilians (who are immune from direct attack except when directly participating in hostilities). That Commentary provides that “[t]hose who belong to armed forces or armed groups may be attacked at any time.” See ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 Aug. 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (Additional Protocol II), ¶ 4789 ... Accordingly, neither the Geneva Conventions nor the Additional Protocols suggest that the “necessary and appropriate” force authorized under the AUMF is limited to al-Qaida leadership or individuals captured directly participating in hostilities, as some petitioners have suggested.

Finally, for these reasons, it is of no moment that someone who was part of an enemy armed group when war commenced may have tried to flee the battle or conceal himself as a civilian in places like Pakistan. Attempting to hide amongst civilians endangers the civilians and violates the law of war. Cf. ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I), ¶ 1944, (Link (http://www.icrc.org/ihl.nsf/COM/470-750065?OpenDocument)) (“Further it may be noted that members of armed forces feigning civilian non-combatant status are guilty of perfidy.”). Such conduct cannot be used as a weapon to avoid detention. A different rule would ignore the United States’ experience in this conflict, in which Taliban and al-Qaida forces have melted into the civilian population and then regrouped to relaunch vicious attacks against U.S. forces, the Afghan government, and the civilian population.

Good job, guys and gals: I will castigate when you move off the "Straight Path". :)

In justice to the arguments made by the Bush DoJ (of which I have been critical at times), they were limited by the administation's fixation on Unilateral Executive Power (e.g., John Yoo) and on State-Supported Terrorism (which resulted in some concessions that nearly amounted to recognition of the Taliban as a nation-state). Added to what seemed to be a fear of the GCs and I Law, the resulting arguments often did not hold together.

The use of "unlawful enemy combatant" was not necessarily fatal (as Judge Leon illustrated in several cases - applying his view of the law, however). The movement to a population-centric concept (persons, groups of persons) allows a much broader detention scope than under the Bush definition.

In fact, the excessive emphasis on "enemy combatant" allowed the defense to bring in a number of GC III, Article 4 arguments in the Hamdan trial. That may have led to a lesser verdict (did, according to the expert witness for Hamdan) - see this thread (http://council.smallwarsjournal.com/showthread.php?t=6118).

jmm99
03-14-2009, 03:16 AM
from George
Be interested in how you see what we do now with released Gitmo terrorist Taliban who is now commander of all Taliban terrorist operations for Kandahar Province in Afghanistan.

we kill him.

From DoJ memo (full quotes above):


Moreover, the Commentary to Additional Protocol II draws a clear distinction between individuals who belong to armed forces or armed groups (who may be attacked and, a fortiori, captured at any time) and civilians (who are immune from direct attack except when directly participating in hostilities).

Time to revise our "self-defense" ROEs to get with the Laws of War ?

Or, if he surenders again, accept the same and detain until the armed conflict with his group is terminated.

davidbfpo
03-16-2009, 09:06 AM
Two documents from the European Union Commission on the reaction to releases from G-Bay; skim read only and couched in bureaucratic and diplomatic prose:

http://www.statewatch.org/news/2009/mar/eu-council-guantanamo-closure-ct-7038-09.pdf

http://www.statewatch.org/news/2009/mar/eu-council-guantanamo-closure-7038-add1-09.pdf

davidbfpo

jmm99
03-16-2009, 04:17 PM
The Times says the EU is hedging about accepting detainees (http://www.nytimes.com/2009/03/16/world/16gitmo.html?_r=1&partner=rss&emc=rss&pagewanted=all):


Europe’s Hedging on Inmates Clouds Guantánamo Plans
By WILLIAM GLABERSON and STEVEN ERLANGER
Published: March 15, 2009

European countries that have offered to help the Obama administration close the detention center at Guantánamo Bay, Cuba, have begun raising questions about the security risks and requirements if they accept prisoners described by the Bush administration as “the worst of the worst,” according to diplomats and other officials. .....

At present, a certain amount of hedging seems prudent - not only in Europe, but here, since the plans of the Obama administration are not yet developed. When the administration took office, there were high hopes among a segment of its base that the Gitmo detainees would be released, the camp would be closed and everyone could forget about detainees. Then, realities set in.

The same NY Times article has a database of former and present Gitmo detainees, which is here (http://projects.nytimes.com/guantanamo).

For example, the database has 15 pages of records for Abdullah Gulam Rasoul, the Taliban officer in sheep's clothes who is presently plying his trade in Astan. Those are for the CSRT and 1st 2 Admin Reviews. The 3rd AR, which released him, is still classified.

davidbfpo
03-16-2009, 11:09 PM
The BBC cites an International Red Cross report, based on G-Bay interviews, which somehow has appeared in public after being given to the USA: http://news.bbc.co.uk/1/hi/world/americas/7945783.stm

davidbfpo

jmm99
03-20-2009, 02:10 AM
1. The first news item, here from the WP (http://www.washingtonpost.com/wp-dyn/content/article/2009/03/18/AR2009031801115_pf.html), is that Ali Saleh Kahlah al-Marri was denied bond and bound over for transfer to Peoria IL, the venue for his eventual trial as an AQ member or supporter.


Continued Detention of Marri Is Ordered
By Carrie Johnson
Washington Post Staff Writer
Thursday, March 19, 2009; A02

A federal magistrate ordered alleged sleeper agent Ali Saleh Kahlah al-Marri detained on conspiracy and terrorism charges yesterday, setting the stage for a trial that could explore al-Qaeda's plans after the devastating terrorist strikes in the United States more than seven years ago.

At a proceeding in Charleston, S.C., Justice Department counterterrorism prosecutor Michael J. Mullaney urged court officials to declare Marri a flight risk and a danger to the community. Authorities say Marri arrived in the United States on Sept. 10, 2001, under false pretenses and "under the command and control of al-Qaeda."

Defense attorney Andrew J. Savage III implored the judge to release Marri, who spent 5 1/2 years in a U.S. naval brig before being indicted by a grand jury late last month. To make his case, Savage called several witnesses, including his own wife, to testify about Marri's character and his religious devotion.

Judge Robert Carr disagreed, reasoning that Marri's lawyers had not met a high legal bar. His order clears the way for Marri's transfer to Peoria, Ill., where he is scheduled to appear in court Monday for arraignment. ....

Why not a habeas proceeding to test al-Marri's continued detention ? Simple. Habeas does not lie where a criminal defendant is held pursuant to the Federal Rules of Criminal Procedure - which by definition provide due process.

--------------------------------
2. My prediction was that the left base of Pres. Obama's support would be unhappy with his administration's position on AQ-Taliban detainees, as expressed in the DoJ memo to the DC District judges. Glenn Greenwald, at Salon (http://www.salon.com/opinion/greenwald/2009/03/15/obama/index.html), has helped my crystal ball's average:


Glenn Greenwald
Sunday March 15, 2009 17:01 EDT
Obama's "enemy combatant" policy: following a familiar pattern
(updated below)
.....
Consider three key episodes from the last week just standing alone. On Friday, the Obama administration announced that it would no longer use the Bush-identified label "enemy combatants" as a ground for detaining Terrorist suspects, an announcement that generated headlines suggesting a significant change from the prior administration. But the following day, after reviewing the legal brief the administration filed (.pdf) setting forth its actual position regarding presidential powers of detention, here is how The New York Times's William Glaberson accurately described what was really done:

"The Obama administration said Friday that it would abandon the Bush administration’s term “enemy combatant” as it argues in court for the continued detention of prisoners at Guantánamo Bay, Cuba, in a move that seemed intended to symbolically separate the new administration from Bush detention policies.

"But in a much anticipated court filing, the Justice Department argued that the president has the authority to detain terrorism suspects there without criminal charges, much as the Bush administration had asserted. It provided a broad definition of those who can be held, which was not significantly different from the one used by the Bush administration."

Bush's asserted power to detain as "enemy combatants" even those people who were detained outside of a traditional "battlefield" -- rather than charge them with crimes -- was one of the most controversial of the last eight years. Yet the Obama administration, when called upon to state their position, makes only the most cosmetic and inconsequential changes -- designed to generate headlines misleadingly depicting a significant reversal ("Obama drops 'enemy combatant' label") -- while, in fact, retaining the crux of Bush's extremist detention theory. ....

In fact, the Obama DoJ definition, read literally, goes beyond the Bush definition. Obama DoJ: a "person" who is a part of AQ, etc. vs. the Bush DoJ: an "enemy combatant" who is a part of AQ, etc. Focus on a "person" (rather than an "arms bearer") would more easily allow inclusion of infrastructure, auxiliary supporters, etc.

I was expecting a blast from the UK by Andy Worthington (http://www.andyworthington.co.uk/); and he has obliged (http://www.andyworthington.co.uk/2009/03/16/guantanamo-the-nobodies-formerly-known-as-enemy-combatants/).


Guantánamo: The Nobodies Formerly Known As Enemy Combatants
16.3.09
....
The Obama administration has clearly learned a trick or two from its predecessors. In its response to a court request for clarification of the meaning of the term “enemy combatant,” for use in the Guantánamo prisoners’ habeas corpus reviews (which were triggered by a momentous Supreme Court decision last June), the new government has responded to the challenge with a cunning sleight of hand. In a press release, the Department of Justice announced that it had dropped the use of the term “enemy combatant,” and that it had adjusted its definition of those who can be detained so that, instead of holding people who were “part of, or supporting, Taliban or al-Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners,” individuals who supported al-Qaeda or the Taliban “are detainable only if the support was substantial.”

As benign-sounding propaganda, in contrast to the Bush administration’s arrogant version, which almost always manifested a tangible disdain for Congress and the judiciary, this announcement has the alluring veneer of the “change” that Barack Obama promised throughout his election campaign, but in practical terms nothing has actually changed. The prisoners are now nobodies, with no label whatsoever to define their peculiar extra-legal existence, and the entire rationale for holding them without charge or trial — and the egregious errors made along the way — remain unaddressed. ...

Andy does realize that the position of the Obama DoJ is more diabolical (to Andy's eyes) than the Bush position - see rest of article.

BTW: Andy has done a lot of work on Gitmo - lists of detainees, news, his comments, etc. His viewpoint differs quite a bit from mine - perhaps, we would find more agreement concerning historical Stonehenge (http://www.andyworthington.co.uk/stonehenge-celebration-subversion/). ;)

--------------------------
Moving a bit away from Stonehenge and Sarum to London, the UK flap re: Binyam Mohamed continues, as reported by Reuters (http://wire.antiwar.com/2009/03/18/uk-to-reveal-secret-agents-interrogation-methods/).


REUTERS
Reuters North American News Service
Mar 18, 2009 13:00 EST
* British to publish spy interrogation guidelines
* PM resists calls for public inquiry into rendition
* Critics say latest moves are not enough
By Luke Baker

LONDON, March 18 (Reuters) - Britain agreed on Wednesday to publish for the first time the guidance it gives intelligence agents when questioning suspects held overseas, following a series of torture allegations. ....

And, here at BBC (http://news.bbc.co.uk/2/hi/uk_news/7950540.stm), is an interesting civil case by a UK detainee.


Page last updated at 14:57 GMT, Wednesday, 18 March 2009
£60,000 awarded to terror suspect

The Metropolitan Police have agreed to pay £60,000 damages to a man arrested during an anti-terror raid.

The High Court heard that Babar Ahmad was subjected to "serious gratuitous prolonged unjustified violence" and "religious abuse" after his arrest.

Mr Ahmad, a 34-year-old IT support analyst, was never charged following the dawn raid at his home in Tooting, south west London, in December 2003.

He is now in jail awaiting extradition to the US on separate charges.
......
BARBAR AHMAD: TIMELINE

Dec 2003: Arrested under anti-terror laws and released without charge
Jul 2004: Assault claims passed to Crown Prosecution Service
Aug 2004: Arrested under anti-terror laws
Oct 2004: Charged with terror crimes by US court
May 2005: British judge rules he can be extradited to US
Jul 2006: Challenges extradition
Nov 2006: Loses extradition challenge
Feb 2007: Abuse claims rejected by IPCC
Mar 2009: Sues Met Police for assault
.....

jmm99
03-20-2009, 02:16 AM
The ICRC report on interrogations (prior post by David) is more extensively discussed in an on-line NY Review of Books article (http://www.nybooks.com/articles/22530).


Volume 56, Number 6 · April 9, 2009
US Torture: Voices from the Black Sites
By Mark Danner
ICRC Report on the Treatment of Fourteen "High Value Detainees" in CIA Custody by the International Committee of the Red Cross 43 pp., February 2007 ....
....
It is a document for its time, literally "impossible to put down," from its opening page—

Contents
Introduction
1. Main Elements of the CIA Detention Program
1.1 Arrest and Transfer
1.2 Continuous Solitary Confinement and Incommunicado Detention
1.3 Other Methods of Ill-treatment
1.3.1 Suffocation by water
1.3.2 Prolonged Stress Standing
1.3.3 Beatings by use of a collar
1.3.4 Beating and kicking
1.3.5 Confinement in a box
1.3.6 Prolonged nudity
1.3.7 Sleep deprivation and use of loud music
1.3.8 Exposure to cold temperature/cold water
1.3.9 Prolonged use of handcuffs and shackles
1.3.10 Threats
1.3.11 Forced shaving
1.3.12 Deprivation/restricted provision of solid food
1.4 Further elements of the detention regime....

—to its stark and unmistakable conclusion:

The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture. In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel, inhuman or degrading treatment.

I would treat this with some caution; but many others won't.

jmm99
03-23-2009, 07:29 PM
in two areas. The first challenge (http://www.scotusblog.com/wp/obama-challenged-anew-on-detention/) by lawyers for a number of detainees goes to the heart of the detainment question - can persons be detained at all unless criminal charges are filed against them, or unless they are detained solely as PW/POWs under GC III ?


Obama challenged anew on detention
Saturday, March 21st, 2009 6:21 am | Lyle Denniston
....
Conceding that the Obama Administration has made “a partial retreat” from Bush Administration claims of power to detain indefinitely individuals rounded up in the “war on terrorism,” lawyers for a group of detainees argued on Friday that the new government is still asserting too much authority. The President, they contended, is engaging in “impermissible law-making” by the Executive Branch, intruding on Congress’s powers.

President Obama’s new claim, outlined a week earlier by the Justice Department, remains ”a marked departure from and expansion of the military detention authority recognized by the traditional law of war,” just as that of the Bush Administration was, according to the new filing Friday in U.S. District Court.....
.....
The new leaders of the Justice Department contended that, while no longer asserting “inherent” presidential power to detain without charges, the President has authority under the resolution Congress enacted after the Sept. 11, 2001, terrorist attacks.

The detainee's filing (in response to the DoJ memo extensively covered in posts above) is here (http://www.scotusblog.com/wp/wp-content/uploads/2009/03/gherebi-ec-memo-3-20-09.pdf).

------------------------------
The second challenge (http://www.scotusblog.com/wp/new-pressure-in-uighurs-cases/) goes to the end game of the habeas process - that is, what remedies can a court order when it has found that a detainee should no longer be detained. Primarily, this is an Uighur issue.


New pressure in Uighurs’ cases
Saturday, March 21st, 2009 5:31 am | Lyle Denniston
....
Seeking to put new judicial pressure on the Obama Administration to end the detention of Chinese Muslim (Uighur) detainees at Guantanamo Bay, lawyers on Friday asked a federal appeals court to hold Defense Secretary Robert M. Gates in contempt for doing nothing to free those prisoners — in one case, for nine months.

If Gates does not obey earlier court orders to take action, the two motions filed in D.C. Circuit Court argued, he should be brought into court promptly to go over possible punishment — including, as one suggestion, a fine of up to $500,000 a day until he obeys.

The two detainee filings are here (http://www.scotusblog.com/wp/wp-content/uploads/2009/03/parhat-renewed-motion-3-20-09.pdf) and here (http://www.scotusblog.com/wp/wp-content/uploads/2009/03/abdusemet-contempt-mtn-3-20-09.pdf).

walrus
03-23-2009, 11:20 PM
A respectful reply to Schmedlap's question:


I don't understand why non-US citizens who were taken prisoner on a battlefield, during armed conflict, and held prisoner outside of our borders, should have protections in the US Constitution bestowed upon them. Rather than addressing this question, we are subjected to accusations of torture, mistreatment, and denial of due process (again, without clarifying whether the detainees are owed any due process).

I think it is easier for people from outside the United States to answer this question for you because we are far enough away to see the wood from the trees as it were.

I draw your attention to the first sentence of the Second paragraph of The Declaration Of Independence:


We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness

The short answer to your question is that one of those unequivocal, unalienable rights is due process.

Now it was The Declaration of Independence that skewered the U.S.S.R. Most foreigners who can read will have read it at some point. We admire it. There is no equivocation, no "some are more equal than others". So to see America pussy footing around that statement of belief, around about rendition, "enemy combatants", what constitutes torture and access to the legal system or some other form of due process was, and is, very unsettling to foreigners.

It's not in America's best interests because it suggests to foreigners that if America is so quick to discard one of its core beliefs so easily, then it's other principles and especially any treaties or agreements it might seek to make with the rest of the world are similarly labile. This is not a good position from which to negotiate as we may all find out in the next few weeks when the G20 meets to sort out the financial crisis and discuss America's lending requirements.

This cannot simply be fobbed off as a "PR disaster". America actions in making these deliberate choices has given licence to every despot in the world to do exactly the same thing (and no doubt much worse) under the mantra of "fighting terrorism". Americas decision to treat "Enemy Combatants" this way is thus a human rights disaster for oppressed people everywhere.

The question remains as to why America jettisoned its entire human rights reputation at a stroke, who engineered it, and what if anything America gained from doing it, apart from alienating large segments of the Muslim world.

Schmedlap
03-23-2009, 11:43 PM
The short answer to your question is that one of those unequivocal, unalienable rights is due process.
No. Due Process is not an unalienable right. It is a procedural safeguard - a legal construct.


It's not in America's best interests because it suggests to foreigners that if America is so quick to discard one of its core beliefs so easily, then it's other principles and especially any treaties or agreements it might seek to make with the rest of the world are similarly labile.
I think that you've got a good point, if you're talking about the public relations impact of the perception that we torture people. We did a horrible job of not getting out in front of that issue. But, to be fair, many in our own country were more concerned with scoring political points against the President than in being rational and considering the impacts of their demonizations and mischaracterizations upon the non-US audience.


The question remains as to why America jettisoned its entire human rights reputation at a stroke, who engineered it, and what if anything America gained from doing it, apart from alienating large segments of the Muslim world.
The answer is that it's a bogus question. Our gov't waterboarded 3 people about 7 years ago in response to fears of a possible ticking timebomb scenario, held detainees captured on the field of battle without a trial, and some Soldiers acting in a criminally negligent manner mistreated Iraqi prisoners, documented it, and were put on trial and convicted. In its zeal to hammer away at the Bush administration, the media turned Abu Ghraib into the most successful propaganda windfall of the post-9/11 era.

We are not without sin. But we're also not the bogeymen that we were portrayed to be by the party and ideology that were not in power from 2002 to 2008. The propaganda windfall for our adversaries would not have been so dramatic had we not supplied them with the material, echoed a similar narrative, and blown the story far out of proportion and given it more credibility, when it deserved none.

jmm99
03-24-2009, 04:15 AM
on this thread. Don't let me interrupt - I'm more than willing to watch from the sidelines.

jmm99
03-24-2009, 07:29 PM
Yesterday, Judge Walton held a 2-hour hearing on the DoJ's new definitions for AQ-Taliban detainees, and the detainees' responses to the same. Lyle Denniston has provided a good summary of the key points (http://www.scotusblog.com/wp/first-test-of-obama-detention-doctrine/) made by the judge and by counsel.


First test of Obama detention doctrine
Monday, March 23rd, 2009 11:07 pm | Lyle Denniston

Analysis

The Obama Administration’s newly crafted claim of government power to detain terrorism suspects underwent its first courtroom test on Monday, and appeared likely to get at least qualified endorsement by at least one judge. A two-hour hearing in U.S. District Court focused mainly on what Congress meant nearly eight years ago in its first response to the 9/11 terrorist attacks, and on what the Supreme Court meant in 2004 in its first ruling in a modern detention case (Hamdi v. Rumsfeld).

Despite a sharply worded attack by two lawyers for detainees, U.S. District Judge Reggie B. Walton displayed skepticsm that the Administration’s doctrine went as far as the lawyers’ criticism had suggested. He told one attorney that the position being taken by detainees’ counsel would “put our nation at risk; you want the United States to fight Al-Qaeda with its hands tied behind its back.” ....

Unfortunately, I have no link to the complete 2-hour transcript.

Bios for Judge Reggie B. Walton are here (http://www.dcd.uscourts.gov/walton-bio.html) and here (http://en.wikipedia.org/wiki/Reggie_B._Walton).

davidbfpo
03-26-2009, 06:22 PM
The UK government has now decided, after an investigation by the law Officers (similar to US Attorney-General), that a police investigation is required on the allegations made of MI5 collusion in Binyam Mohammed's torture: http://www.telegraph.co.uk/news/newstopics/politics/5054961/Binyam-Mohamed-Police-are-to-investigate-MI5-over-torture-allegations.html

The BBC has some reactions: http://news.bbc.co.uk/1/hi/uk/7966177.stm

These allegations are now going to get awfully messy IMHO; others have commented on the level of knowledge of MI5 management, not the officer present. (MI5 is the slang term for the UK Security Servivce).

davidbfpo

jmm99
03-26-2009, 07:24 PM
given the plate which was presented by BM's release. That plate is that his offenses (if any) remain unresolved - and that the focus was shifted to the allegations of his renditions and interrogations.

I have stated before that BM ought to have been tried by the US: (1) for war crimes, "terrorist acts", etc. - if any there were; or (2) if there were no crimes, whether he was an enemy combatant (old definition) or a person who was a member or substantial supporter of AQ-Taliban-associated groups (new definition), subject to detention in the first place.

I can only infer that US political decisions were made to avoid trial because of the hot potato of his renditions and interrogations. Those decisions (in which both the Bush II and Obama administrations share responsibility) have resulted in a situation where BM's status before he was rendered and interrogated cannot be resolved - and will become submerged in the new allegations and presumably future investigative findings.

In short, BM will be presented as an "innocent victim", or at most as one who had "misbehaved" (in the words of the shadow minister). Naughty boy. :(

jmm99
03-27-2009, 08:10 PM
I confess to having known of the Aafia Siddiqui case just after it was filed, but it slipped through the cracks of my floorboards.

Anyway, here is the initial NY Times article (http://www.nytimes.com/2008/08/05/world/asia/05detain.html?_r=1) re: the charges.


Pakistani Suspected of Qaeda Ties Is Held
Published: August 5, 2008

WASHINGTON — An American-trained Pakistani neuroscientist with ties to operatives of Al Qaeda has been charged with trying to kill American soldiers and F.B.I. agents in a police station in Afghanistan last month, the Justice Department said Monday night.

The scientist, Aafia Siddiqui, who studied at Brandeis University and the Massachusetts Institute of Technology, was transferred to New York on Monday, and is to be arraigned Tuesday in the United States District Court for the Southern District of New York, the department said in a statement.

Ms. Siddiqui, 36, disappeared with her three children while visiting her parents’ home in Karachi, Pakistan, in March 2003, leading human rights groups and her family to believe she had been secretly detained. But in interviews Monday and in a criminal complaint made public later Monday, American officials said they had no knowledge of Ms. Siddiqui’s location for the past five years until July 17, when Ms. Siddiqui and a teenage boy were detained in Ghazni, Afghanistan, after local authorities became suspicious of their loitering outside the provincial governor’s compound. ...

Had to be one embarrassed WO that day.

Now, it seems (at least in DoJ's view) that Ms Siddiqui is not nuts, but faking (http://cityroom.blogs.nytimes.com/2009/03/26/terror-suspect-faked-mental-illness-prosecutors-say/).


March 26, 2009, 11:18 am
Terror Suspect Faked Mental Illness, Prosecutors Say
By Benjamin Weiser

A federal prosecutor in Manhattan said Thursday that two government psychiatrists had concluded that a Pakistani neuroscientist charged with trying to kill American soldiers and F.B.I. agents in Afghanistan had been faking her symptoms of mental illness.

An earlier court-ordered psychological evaluation had concluded that the neuroscientist, Aafia Siddiqui, 37, was unfit for trial as a result of a mental disease, “which renders her unable to understand the nature and consequences of the proceedings against her or to assist properly in her defense,” a court document shows.

Then last month, prosecutors said two new evaluations by government-retained psychiatrists had found differently, that she was not suffering from mental illness. But the prosecutors had not previously said the doctors concluded she was faking.

On Thursday, an assistant United States attorney, David Raskin, told a judge in Federal District Court that the psychiatrists, each working independently and unaware of the other’s findings, concluded that the symptoms that had been seen “were attributed to malingering.”

“It was manipulation by the defendant,” Mr. Raskin told Judge Richard M. Berman, “as opposed to any signs of serious mental illness.” .....

We shall see whether "gaming the system" is in play.

davidbfpo
03-28-2009, 11:11 AM
A report in the UK Daily Telegraph, without citing sources - assumed in another article in The Guardian to be the Security Service (MI5) and Secret Intelligence Service (MI6), so probably "spin" or leaking: http://www.telegraph.co.uk/news/newstopics/politics/lawandorder/5063053/Torture-inquiry-reveals-15-new-cases.html

Contains interesting figures on how many prisoners were interviewed by the UK whilst held by the USA.

I don't recall other released prisoners, e.g. the "Tipton Taliban" alleging torture and Mozzam Begg in public attests to hearing torture, but IIRC not that he was tortured.

davidbfpo

jmm99
03-28-2009, 06:24 PM
that more allegations of unlawful renditions, interrogations and torture will surface, if this excerpt from the Telegraph is accurate:


It is understood that MI5 and MI6 conducted more than 100 interviews in Afghanistan, more than 100 at Guantanamo Bay and more than 2,000 in Iraq.

That there are but 15 detainees alleged to be in this category, suggests the scope of the potential problem - relatively small as compared to the number of detainees interviewed.

But, allegations do not rise to the standard of evidence. Given the allegations, the UK's investigation into them is logical. So, also a judicial inquiry if the evidence adduced by the investigation provides probable cause to believe that crimes were committed under UK laws.

A cautionary note to those following this: What may be a crime under UK laws, may not be crime under US laws - and vice versa. The "Law" is not a brooding omnipresence in the sky (as the Eminent Jurists seem to think). It varies from nation to nation and is a manifestation of their sovereignty.

So also, the interpretation of basic principles; and the implementation of that interpretation.

davidbfpo
03-29-2009, 12:41 AM
In this article the former Conservative spokesman on security mattersm David Davis, comments and opens up the issues involved: http://www.guardian.co.uk/commentisfree/2009/mar/29/comment-binyam-mohamed-david-davis

He is always forthright.

davidbfpo

jmm99
03-30-2009, 07:05 PM
Please take a look at this thread (http://council.smallwarsjournal.com/showthread.php?p=69086#post69086), post #32.

jmm99
03-31-2009, 08:55 PM
Geoffrey S. Corn, LTC (ret.) has published a number of studies dealing with the interfaces between the Laws of War, the Rule of Law and the applicable ROEs (status-based and conduct-based).

Two which are most applicable to this thread and recent (2006 & 2008) are:

"Hamdan, Lebanon, and the Regulation of Armed Hostilities: The Need to Recognize a Hybrid Category of Armed Conflict" (download from this link (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=942070#))

"Untying the Gordian Knott: A Proposal for Determining Applicability of the Laws of War to the War on Terror" (paper here (http://law.huji.ac.il/upload/Corn_Untying_the_Gordian_Knott.pdf))

LTC Corn also joined in an amici brief (http://ccrjustice.org/files/9.11.08%20Amicus%20Brief%20in%20International%20Hu manitarian%20Law%20w.%20disclaimer.pdf), dealing with the issue of combatant immunity if claimed by civilians - in that case, military contractors; but more generally also applicable to any group of armed civilians.

There are two CLAMO studies specifically dealing with "Legal Lessons Learned From Afghanistan and Iraq" - volume 1 (http://www.fas.org/irp/doddir/army/clamo-v1.pdf) and volume 2 (http://www.fas.org/irp/doddir/army/clamo-v2.pdf).

More generally, we have the "Rule of Law Handbook 2008 (http://www.fas.org/irp/doddir/army/ruleoflaw.pdf)" from JAG Legal Center, which ties into a number of other manuals (e.g., the Operational Law Handbook 2007 (http://www.fas.org/irp/doddir/army/law2007.pdf) & 2008 (http://www.loc.gov/rr/frd/Military_Law/pdf/operational-law-handbook_2008.pdf).

The total of all files linked above are 64 MB.

LTC Corn and I end up about in the same places, although approaching the issues from differing vantage points. One way or the other, one has to find a solution that will fit into the attached interface diagram (credits: Corn). Both of us realize it has to end in appropriate ROEs, which cannot be imposed as a matter of law.

jmm99
04-01-2009, 03:48 AM
Some of the evidence (good, bad or indifferent) against Gitmo detainees has come from informers in their midst. Now, one of them (Yasin Muhammed Basardh (http://www.scotusblog.com/wp/detainee-informer-wins-release/)) has been ordered released via a habeas hearing that was totally classified and sealed:


Detainee informer wins release
Posted by Lyle Denniston on March 31, 2009.

Acting on the basis of secret documents and a closed-door hearing, a federal judge on Wednesday ruled that a Yemeni detainee at Guantanamo Bay — identified in news accounts as the government’s “star witness” against other detainees — is legally entitled to be released from captivity. In a one-page order, found here (http://www.scotusblog.com/wp/wp-content/uploads/2009/03/basardah_order_granting_relief1.pdf), U.S. District Judge Ellen Segal Huvelle granted the habeas plea of Yasin Muhammed Basardh, 33.

Early in February, in the most complete news story (http://www.washingtonpost.com/wp-dyn/content/article/2009/02/02/AR2009020203337_pf.html) so far about Basardh as an informer, the Washington Post quoted him as saying during an earlier military hearing: “I am cooperative to the point where my cooperation with everyone has led many people threatening my life…I have put my life in danger and therefore I cannot go back to my own country…They will not hesitate to kill me or anyone in my family.”
....
Judge Huvelle held a closed-door hearing Tuesday in Basardh’s case with lawyers for both sides, and afterward issued her release order. Basardh’s lawyers had filed a motion for a ruling on his plea for release, and the government had responded, but the judge noted that those documents remained classified. She also gave no public reasons for her action, saying only that she had done so during the “sealed” hearing.

Her order directed government officials to “take all necessary and appropriate diplomatilc steps to facilitate the release of petitioner Basardh forthwith.” This is the first time Judge Huvelle has ordered a Guantanamo prisoner to be released. Presumably, Basardh will remain at Guantanamo until the U.S. government finds a place to resettle him.

The Washington Post article (which provides a lot of detail for a classified case) concludes:


The U.S. government will probably not grant Basardah and other informers asylum. That leaves two options for the U.S. government: find a third country to accept them or, more likely, send them home under protective arrangements, according to outside experts and former government officials. One former informer, a friend of Basardah's, has been sent back to his home, Iraq.

Would a witness protection program work for Gitmo informers ? - serious question.

Judge Huvelle's official bio (http://www.dcd.uscourts.gov/huvelle-bio.html) and Wiki (http://en.wikipedia.org/wiki/Ellen_Segal_Huvelle).

Ron Humphrey
04-01-2009, 04:31 AM
Would a witness protection program work for Gitmo informers ? - serious question.



Hard to see how it could. At least not in the context that most of us would perceive how something like that is supposed to work. If you think about how often those who have been placed in protection even here with all that we do.

1- end up doing some of the same stuff they did before
2-find themselves running into old aquaintances

Long and short even if you got a country to agree to take them whats the real expectation that they won't be either gone in a short time or disappear only to show up somewhere else you don't want them.

The main concern being based on the manpower you'll waste looking for them because whether they disappear for their own safety or to go do something bad you'll have to search for them either way.

If they aren't placed somewhere you have control of seems like it would be one heck of a die roll.

jmm99
04-01-2009, 06:25 PM
thanks for the input. What about settling them (the informers) in the US under tight controls ?

The point being that informers are needed and will continue to be needed. If we cannot guarantee their safety (and that of their families), will that dry up the "informer pool" ?

I am no expert on witness protection programs - thus, the question.

jmm99
04-03-2009, 02:52 AM
Today, DC District Judge John D. Bates issued a short order (http://www.scotusblog.com/wp/wp-content/uploads/2009/04/bagram-order-bates-4-2-09.pdf) in 4 Bagram detainee cases; and a much longer (53 page) opinion (http://www.scotusblog.com/wp/wp-content/uploads/2009/04/bagram-ruling-bates-4-2-09.pdf), granting 3 of them the right to proceed with their habeas cases, and requiring supplemental briefing on a 4th.

Starting first with Judge Bates' bio (http://www.dcd.uscourts.gov/bates-bio.html) and wiki (http://en.wikipedia.org/wiki/John_D._Bates), we find he was a Bush II (Dec 2001) appointee. From 1968 to 1971, he served in the United States Army, including a tour in Vietnam. He went on to law school graduating in 1976.

He served as Deputy Independent Counsel for the Whitewater investigation from 1995 to mid-1997. In February 2006, he was appointed by Chief Justice Roberts to serve as a judge of the United States Foreign Intelligence Surveillance Court. He has decided a number of high-profile cases (e.g., dismissal of the Plame civil action; but also several cases for & against the Bush II administration).

Judge Bates is a center-right jurist with substantial credentials.

Here is a snip from Lyle's analysis (http://www.scotusblog.com/wp/major-extension-of-boumediene/):


Major extension of Boumediene
Thursday, April 2nd, 2009 6:13 pm | Lyle Denniston
....
In one of the most significant sequels to the Supreme Court’s ruling last June on the rights of terrorism suspects held by the U.S. military, a federal judge decided Thursday that the ruling protects the rights of at least some of the detainees the U.S. is holding at Bagram air base outside of Kabul, Afghanistan.
....
The ruling, though, applied to only three of the Bagram detainees. (There reportedly are more than 600 there now; the judge said his ruling would affect “only a limited” group at Bagram, but did not give a specific number.) The judge cited as a key fact for each of those three that they were all captured outside Afghanistan and then transferred to Bagram “for detention now exceeding six years.” None of those three is an Afghan citizen. For a fourth, who is an Afghan citizen, the judge said that could be ”enough to tip the balance” against his claim for habeas relief.

“Although it may seem odd that different conclusions can be reached for different detainees at Bagram,” the judge wrote in a 53-page opinion, it was his view that this “is the predictable outcome” of the formula, to be used detainee-by-detainee, that the Supreme Court mandated in its ruling last June in Boumediene v. Bush. ....

So far tonite, the punditry (whether left or right) on this decision has been universally wrong on what the opinion holds and its consequences.

Its consequences will be that 3 Bagram detainees will receive a limited habeas hearing to determine if they were "enemy combatants" before they were captured - that to be decided by a preponderence of the evidence (50 yds and a nose). A 4th detainee may or may not receive a hearing. The decision releases no one.

The essence of Judge Bates' ruling is found in his perception of the present state of habeas law, as determined by a majority (split opinions) of SCOTUS in Boumediene (2008)


(opinion, p.15)
Boumediene concluded that "at least three factors are relevant in determining the reach of the Suspension Clause":

(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner's entitlement to the writ.
128 S. Ct. at 2259.

For the sake of analysis, these three factors can be subdivided further into six: (1) the citizenship of the detainee; (2) the status of the detainee; (3) the adequacy of the process through which the status determination was made; (4) the nature of the site of apprehension; (5) the nature of the site of detention; and (6) the practical obstacles inherent in resolving the petitioner's entitlement to the writ.

Judge Bates then discusses these factors in depth. Note this is a reasoned opinion - not some flaky toss-off.

My own preference would look to the scope of expanded territorial jurisdiction - similar to Justice Scalia (but with Gitmo in and Bagram out; his rationale in Boumediene has both out). However, Judge Bates may end up with a majority of SCOTUS on his side.

We shall see, but it will be a while until this case reaches SCOTUS. By that time, the Court's composition could be quite different.

Moreover, the Legislative and Executive branches could totally change the name of the game in all present and future detainee cases by simply amending the DTA and MCA - and spell out new rules for habeas cases.

jmm99
04-04-2009, 07:18 PM
Judge Richard Leon has again decided a habeas case, Hedi Hammamy (http://www.washingtonpost.com/wp-dyn/content/article/2009/04/03/AR2009040301503_pf.html), in favor of continuing detainment.


Judge Rules U.S. May Continue to Hold Guantanamo Detainee
By Del Quentin Wilber
Washington Post Staff Writer
Friday, April 3, 2009; 12:16 PM

A federal judge has ruled that the government may continue to detain a 40-year-old Tunisian at the U.S. military prison at Guantanamo Bay, Cuba.

In a nine-page decision issued yesterday, U.S. District Judge Richard Leon found that the government had produced enough evidence to show that Hedi Hammamy had supported al-Qaeda, the Taliban or their associated forces. Hammamy was challenging his detention in a lawsuit filed in U.S. District Court under the centuries-old legal doctrine of habeas corpus.

Leaving aside the Uighurs, where both Bush and Obama DoJs conceded the absence of evidence allowing detention, the box score on release orders vs. continued detainment orders is roughly 50-50.