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Thread: Crimes, War Crimes and the War on Terror

  1. #41
    Council Member marct's Avatar
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    Default

    Quote Originally Posted by CloseDanger View Post
    "If, as the Bush administration has held, they are not "legal combatants", then what are they? The rhetorical answer was to call them "criminals", but even criminals have rights under international laws to which the US is a signatory."

    They are neither. They have no code. They are signatory to nothing, and hold no value for life. They do not work for a country OR GOD.
    Whether or not they are signatories is not germain to the argument - the US is a signatory.

    Quote Originally Posted by CloseDanger View Post
    Our legal system is for our citizens who have rights. Not phlem flam from some throwback century.
    Your legal system, including all of your rules of evidence, "rights", etc., is for whomever your government agrees to cover which may, or may not, include your citizens and those of other nations. Rule of law has nothing whatsoever to do with whether or not the people who are detained have ever signed a convention (individuals don't) or are citizens with rights (as opposed to either citizens without rights or non-citizens), but it has everything to do with the US government keeping its pledged word to the international community.
    Sic Bisquitus Disintegrat...
    Marc W.D. Tyrrell, Ph.D.
    Institute of Interdisciplinary Studies,
    Senior Research Fellow,
    The Canadian Centre for Intelligence and Security Studies, NPSIA
    Carleton University
    http://marctyrrell.com/

  2. #42
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    Default "pledged word"

    Hi Marc,

    One small point on the following from your post:

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

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

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

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

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

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

    Constitutional Law: Executive Agreements: International Law: Executive Authority concerning the Future Political Status of the Trust Territory of the Pacific Islands. Michigan Law Review, Vol. 66, No. 6 (Apr., 1968), pp. 1277-1292 (article consists of 16 pages) Published by: The Michigan Law Review Association.
    GC's (especially common Art. 3) are more of a quagmire. Still struggling with those in light of the recent cases, without reaching any firm conclusions.

  3. #43
    Council Member Tom Odom's Avatar
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    Default Galloway on Taguba

    Joe Galloway's latest on MG (ret) Taguba--also on Ebird today

    Commentary: Gen. Taguba knew scandal went to the top

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

    You see, his father, Sgt. Tomas Taguba, was a soldier in the famed Philippine Scouts and was, briefly, a prisoner of the Japanese after Bataan fell in the opening days of our war in the Pacific. Sgt. Taguba escaped during the Death March and spent the next three years spying on the Japanese and relaying the information to U.S. forces.
    In the preface to a damning report on the treatment of Guantanamo detainees by a group called Physicians for Human Rights — which had examined and interviewed 11 former Guantanamo detainees freed without charges — Taguba declared that there was no longer any doubt whatsoever that President George W. Bush and others in the White House had committed war crimes. Related article

  4. #44
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    Default Parhat - Detainee Treatment Act of 2005

    The first of the DTA (Detainee Treatment Act of 2005) cases was decided Friday, with notice issued Monday:

    http://www.scotusblog.com/wp/wp-cont...er-6-20-08.pdf

    On Friday, June 20, 2008, the court issued an opinion to the parties in the above-captioned case. Pursuant to the Detainee Treatment Act of 2005, the court held invalid a decision of a Combatant Status Review Tribunal that petitioner Huzaifa Parhat is an enemy combatant. The court directed the government to release or to transfer Parhat, or to expeditiously hold a new Tribunal consistent with the court's opinion. The court also stated that its disposition was without prejudice to Parhat's right to seek release immediately through a writ of habeas corpus in the district court, pursuant to the Supreme Court's decision in Boumediene v. Bush, No. 06-1195, slip op. at 65-66 (U.S. June 12, 2008). Because the opinion contains classified information and information that the government had initially submitted for treatment under seal, a redacted version for public release is in preparation.
    Note that the government was given options: (1) to release Parhat; (2) to transfer Parhat (presumably to another status or to another jurisdiction); or (3) to expeditiously hold a new Tribunal consistent with the court's opinion.

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

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

  5. #45
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    Default Parhat redacted opinion issued

    The DC Circuit issued its unanimous opinion in Parhat v. Gates, redacting quotation of classified evidence, at:

    http://www.scotusblog.com/wp/wp-cont...in-6-20-08.pdf

    Some key points in the holding:

    (slip p. 30)

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

    (slip p. 33)

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

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

    (slip p. 38)

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

    http://balkin.blogspot.com/2008/06/c...ly-detain.html

    and by Lyle Denniston at

    http://www.scotusblog.com/wp/circuit...re-assertions/

  6. #46
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    Default Ashcroft et al. off the civil liability hook

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

    http://www.scotusblog.com/wp/wp-cont...ca-6-30-08.pdf

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

    The majority summarized its holding as follows:

    (slip pp. 6-8)

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

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

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

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

    http://www.scotusblog.com/wp/circuit...for-rendition/

    This case will be of Canadian interest.

  7. #47
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    Default Hamdan, UBL's driver,

    is back in the news as his lawyers seek to stop his military commission trial, set for 21 Jul 2008.

    Article by Lyle Denniston here:

    http://www.scotusblog.com/wp/new-cha...als/#more-7638

    New challenge to war crimes trials
    Thursday, July 3rd, 2008
    Lyle Denniston
    ....
    Lawyers for Salim Ahmed Hamdan — the Yemeni national detained at Guantanamo Bay whose case led to the scuttling of President Bush’s first attempt to set up military trials for terrorism suspects — moved on Thursday to stop the replacement system enacted by Congress. In legal filings in U.S. District Court, Hamdan’s counsel sought a court order blocking the scheduled military commission trial of Hamdan, now due to begin on July 21.
    .....
    UPDATE 4:23 p.m. District Judge James Robertson, moving this new case along swiftly, has told the Justice Department to file its opposition on Monday, July 14, and detainee’s counsel to file their reply on Wednesday, July 16. The judge set oral argument on the motion for Thursday, July 17.
    More than 250 cases are expected in the DC district::

    http://www.scotusblog.com/wp/detaine...istrict-court/

    Federal District judges in Washington, D.C., who will handle scores of pending and likely future challenges by Guantanamo Bay detainees to their confinement, decided on Monday to shift them temporarily to one judge to work on ways to process the cases. Attorneys for detainees began receiving notices Tuesday that the judges, in a closed-door session earlier in the day, had agreed that Senior District Judge Thomas F. Hogan would handle “coordination and management” issues. The underlying cases will remain with the individual judges for future action on the merits.
    Of course, there was an exception - so, 18 cases (including Boumediene) are following a separate track:

    http://www.scotusblog.com/wp/separat...ome-detainees/

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

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

    E.g.,

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

    Sept. 11 Co-Conspirators *New Items*
    Khalid Sheikh Mohammed
    Walid Muhammad Salih Mubarek Bin 'Attash
    Ramzi Binalshibh
    Ali Abdul Aziz Ali
    Mustafa Ahmed Adam al Hawsawi
    [etc.]
    Since this site includes the charge sheets and MC orders (including the Dec 2007 orders for Hamdan), one can draw one's own conclusions about how "due" the process has been.

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

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

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

    12/19/2007 - Ruling in Motion to Dismiss for Lack of Jurisdiction - Salim Ahmed Hamdan
    12/17/2007 - Ruling on Defense Motion for Article 5 Status Determination - Salim Ahmed Hamdan
    I fail to see the problem. They were well considered decisions.

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    Default Hamdan & al-Marri Updates

    The military commission trial of Hamdan will move forward next week, unless enjoined by a higher court.

    Analysis by Lyle Denniston

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

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

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


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

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

    Analysis by Lyle Denniston

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

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

    http://www.scotusblog.com/wp/wp-cont...arrienbanc.pdf

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

    (slip pp.4-5)

    PER CURIAM:

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

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

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

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

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

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

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

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

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

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    Default No Hamdan appeal,

    for now; and the MC trial begins Monday.

    Analysis by Lyle Denniston

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

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

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

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

  10. #50
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    Default Hamdan trial coverage

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

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

    July 22

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

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    Default This will take awhile

    to sort out - the appeals and hearings in a number of pending DC cases.

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

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

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

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

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

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

  12. #52
    i pwnd ur ooda loop selil's Avatar
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    Default

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

    Guess we'll just have to wait. I'll post a link if something shows.

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

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

  14. #54
    i pwnd ur ooda loop selil's Avatar
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    Default

    I can't find a link but I thought after the New Mexico riots judges were in charge of the department of corrections and reviewing housing assignments and such (especially the privatized) for the facilities. Somewhere I have a few books on incarceration reform and corrections history (legal).
    Sam Liles
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    The scholarship of teaching and learning results in equal hatred from latte leftists and cappuccino conservatives.
    All opinions are mine and may or may not reflect those of my employer depending on the chance it might affect funding, politics, or the setting of the sun. As such these are my opinions you can get your own.

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    Default Update on detainees' and government's positions -

    links to briefs before the District Court (nothing on US's appeal brief, which may not be filed for awhile).

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

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

    The briefs are each side’s attempt to carry out their view of what the Supreme Court had in mind in its June 12 decision (Boumediene v. Bush, 06-1195) declaring that the detainees have a constitutional right to challenge their captivity. The detainees’ arguments stress the historic importance of a detailed examination of Executive Branch decisions to hold individuals without charges, while the government’s arguments stress the need to keep the process confined in order not to intrude on the Executive’s “wartime” powers.
    http://www.scotusblog.com/wp/sharp-d...ses/#more-7727

    Detainees’ brief here:

    http://www.scotusblog.com/wp/wp-cont...bf-7-25-08.pdf

    Government brief here

    http://www.scotusblog.com/wp/wp-cont...bf-7-25-08.pdf

    Government’s proposed “case management” order here.

    http://www.scotusblog.com/wp/wp-cont...er-7-25-08.pdf

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

  16. #56
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    Default One of the man-eating tigers,

    (oops) one of the accused man-eating tigers,

    rears its head.

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

    The Justice Department, having succeeded in keeping the Hamdan trial on track, repeated in its response to bin al-Shibh’s plea for an injunction with many of the same arguments it used against Hamdan’s request.
    http://www.scotusblog.com/wp/new-att...-crimes-trial/

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

  17. #57
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    Default Habeas Cases - Briefs Filed

    on the process each side wants. As expected, they disagree; and the three judges hearing the cases may diverge in their opinions. Full discussion here:

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

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

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

    The detainees’ view, if accepted, very likely would lead to a wider ranging inquiry, the government’s to a more narrowly confined review. Indeed, those are precisely the conflicting objectives that the two sides were pursuing as they filed, late Friday night, their responses to each others’ proposals on the “procedural framework” for the habeas cases.
    http://www.scotusblog.com/wp/analysi...ute/#more-7762

    The detainees’ new brief is here

    http://www.scotusblog.com/wp/wp-cont...ure-8-1-08.pdf

    The government’s is here

    http://www.scotusblog.com/wp/wp-cont...ure-8-1-08.pdf

  18. #58
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    Default Hamdan Jury is Out,

    and will decide the case.

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

    Jury is out for Hamdan -- and the tribunal process
    The first person to be tried in a military tribunal at Guantanamo will remain incarcerated no matter the verdict. Concerns remain about the procedure's fairness.
    By Carol J. Williams, Los Angeles Times Staff Writer
    August 4, 2008
    GUANTANAMO BAY, CUBA -- The war crimes case against Salim Ahmed Hamdan today goes to a jury of his enemies, hand-selected by the Pentagon official who charged him on behalf of a president who has ordered him imprisoned even if acquitted.
    http://www.latimes.com/news/nationwo...,2040961.story

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

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

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

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

    [text with discussion and links follow this]
    http://www.scotusblog.com/wp/analysi...-habeas-cases/

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

  19. #59
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    Default US 7 - Hamdan 0; US 0 - AQ 0,

    since this is a split (Hamdan not guilty of being part of an AQ conspiracy)

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

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

    http://www.miamiherald.com/news/brea...ry/631090.html

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

    http://www.nytimes.com/2008/08/06/wa...hp&oref=slogin

    To Be Continued........

  20. #60
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    Default Federal Court Control of Gitmo ?

    Not in the case below. One of the chamber of horrors arguments against allowing basic habeas petitions to Gitmo detainees was that allowing them would lead to court orders regulating prison conditions, etc.

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

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

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

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

    Judge Urbina's opinion is here:

    http://www.scotusblog.com/wp/wp-cont...urs-8-7-08.pdf

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