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Just spent about 15 minutes ...
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.
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Fascinating and sad.
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...
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Fascinating, scary and ....
(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.
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released by Senators Levin and McCain
Quote:
Senate probe blames top Bush officials for abuses
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."
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I've long contended that the DoD position on interrogation
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.
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Ken,
While I agree on your points on Levin, note that McCain was also quoted as below:
Quote:
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
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The man has been, is now and is likely to always be untrustworthy IMO.
Quote:
Originally Posted by
Tom Odom
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...
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Judge Hogan amends Case Management Order
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.
Quote:
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-v...ses/#more-8410
Judge Hogan's order is here.
http://www.scotusblog.com/wp/wp-cont...r-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.
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Winding down & winding up
The "winding down" item is the following:
Quote:
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-d...ent-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:
Quote:
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-o...ew-on-torture/
Quote:
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/analysi...ene/#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."
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Judge Leon ends year with two more decisions
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.
Quote:
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-r...two-detainees/
The non-classified order concerning the Yemeni captive, Moath Hamza Ahmed Al Alwi, is here.
The non-classified order concerning the Tunisian prisoner, Hisham Sliti, is here.
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Bagram Habeas Cases
Four habeas petitions from Bagram detainees will be heard tomorrow before DC District Judge John Bates.
Quote:
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-bo...ram/#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.
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McClatchy on Obama DoJ Picks
McClatchy summarizes 4 DoJ appointments; three will have some impact on these "War Crimes" cases, here.
Quote:
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 and here.
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 and here.
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.
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Bagram Habeas Summary
The Bagram habeas hearing ended with the judge requesting more information from the DoJ.
Quote:
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]
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
Quote:
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:
Quote:
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.
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DC Panel Voids DTA Review Process
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.
Quote:
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, 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).
Quote:
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.
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Judge Leon decides again
Richard Leon is earning himself the title of "The Decider". As Lyle Denniston points out here, he has decided 9 detainee cases so far.
Quote:
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.
The key points of the ruling are first the legal test for "enemy combatant" ("unlawful combatant", which I prefer, is the same thing):
Quote:
(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):
Quote:
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, 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 !
Quote:
(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.
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Added DoJ Appointees
Besides the 4 named in post #162 above - and Mr. Holder, 5 more middle level appointee have been named. Their bios are linked here and here.
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.
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No surprise - USG motions to continue
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.
Quote:
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-s...etainee-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 (in the KSM Five case) is more expressive, but not an icon for tea leaf readers.
Quote:
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.
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My apologies, Mr. President,
in referring to your Gitmo EO as a "PR EO". The draft, now being floated and discussed here, has some teeth - and also some tea leaves.
Quote:
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):
Quote:
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.
The relevant legal references (besides the Constitution and Federal statutes also referenced) are these:
Quote:
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:
Quote:
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:
Quote:
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:
Quote:
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.
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My apologies, Mr. President - part 2
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:
Quote:
(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.
Quote:
(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.
Quote:
(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).
Quote:
(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.
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Updated orders
The as-signed Gitmo order had no substantive changes from the draft order reported last nite.
An added order was signed in the 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.
Quote:
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, with an associated article here.
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:
Quote:
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.
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Some judicial timelines set
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.
Quote:
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" has been raised by District Judge John D. Bates, who is faced with 4 Bagram cases. His bio is here. Appointed in Dec 2001, his bio includes a couple of interesting facts:
Quote:
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):
Quote:
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 is a classic in understatement:
Quote:
... 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, Judge Bates issued a second order (again more of a suggestion):
Quote:
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 again asks for "refinement" of DoJ's position:
Quote:
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.
-
The Uighurs write a letter ...
actually, their attorneys have filed a letter request.
Quote:
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, 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:
Quote:
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.
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SNAFU or FUBAR
You can draw your own conclusions from the following news articles.
Washington Post
Quote:
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
Quote:
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
Quote:
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 - 109 photos - know your enemy.
CNN News
Quote:
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.
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Every new Administration tries to quickly reverse
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...
-
Judge Leon decides again ...
as reported here.
Quote:
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, because it was panned on MSNBC's Countdown tonite:
Quote:
(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.
-
Gitmo report due in 30 days
The initial report on resolution of Gitmo issues has been assigned.
Quote:
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 provides more detail.
Quote:
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.
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Forthcoming Exec branch internal memos
Propublica has published a chart 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.
-
ACLU link to Al-Marri briefs
Of three updates tonite, the first is the schedule in al-Marri.
Quote:
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 and here.
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.
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Jawad MCA appeal decision stayed
The CMCR (U.S. Court of Military Commission Review) has continued the Jawad case for 120 days.
Quote:
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; the detainee's opposition is here; and the Court's opinion is here.
The major legal point made by the appeals court hinged on Presidential powers:
Quote:
(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.
Quote:
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.
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Binyam Mohamed - a case mired ...
and creating a problem in US-UK relations, as posted by David here (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 has resulted in four decisions:
21 August 2008
High Court (Queen's Bench Division) Divisional Court Judgment
29 August 2008
High Court (Queen's Bench Division) Divisional Court Judgment
22 October 2008
High Court (Queen's Bench Division) Divisional Court Judgment
4 February 2009
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:
Quote:
(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.
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Rendition & Mesne Detention
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.
Quote:
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.
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Know thy enemy ....
but not in the arena of detainees - based on the first Obama DoJ submission to Judge Bates' request that the DoJ advise him if the definition of "enemy combatant" will be "refined".
Quote:
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.
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 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.
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Please tell me who the enemy is ...
by March 13, says Judge Bates.
Quote:
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.
Quote:
(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]
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Binyam Mohamed - Developing Story
The Mohamed case was first reported in this thread here (post #83).
The NY Times has filed a very short (4 sentence) item, stating that he will be released from Gitmo and returned to the UK. The Times Mohamed index is here.
Quote:
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 and the London Observer.
Last Monday, as reported on Wednesday by the UK Guardian, counsel for Mohamed submitted a letter and attached memo 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.
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DC Circuit to Uighurs - Duh !
In what will probably not be a landmark decision, a 3-judge DC Circuit panel 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..."
Quote:
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 and judgment 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.
Quote:
(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):
Quote:
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.
Quote:
(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.
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Developments in the UK
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/fe...-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/commentisf...iberty-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/commentisf...ivil-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/fe...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
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David, thanks again ....
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 "Whitehall devised torture policy for terror detainees" and its lead:
Quote:
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.
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 ?
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The Eminent Jurists report ...
I've slogged through the EJPR - 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:
Quote:
(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:
Quote:
(p.29, .pdf)
Criminal law is the primary vehicle to address terrorism ....
Third, is the US legal position incorrect:
Quote:
(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. Other than being Irish and a lawyer, I expect the twain shall neer meet.
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Good comments. I think you're correct.
Quote:
Originally Posted by
jmm99
...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:
Quote:
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.
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At least two good takeoff points ....
Quote:
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.
-----------------
Quote:
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".
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Now comes the propaganda circus ...
or, have we entered a phase where no political advantage will be made of the impending release of Binyam Mohamed.
Quote:
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 !
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Obama DoJ to Bagram detainees - no habeas rights
The DoJ filed an extremely short response in its final briefing in the Bagram habeas cases pending before Judge Bates.
Quote:
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.
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UK awaits G-Bay prisoner
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/news...-suspects.html
(JMM I will try to answer your questions posed another time).
davidbfpo
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Torture allegations
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...n-human-rights
davidbfpo
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UK policy on prisoners in Iraq
Quote:
Originally Posted by
jmm99
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/to...cle5654450.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
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David, thanks for this clarification ....
Quote:
(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.
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Binyam Mohammed's statement
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
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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.
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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.
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Silver lining ... but first
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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.
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 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. :(
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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.