Crimes, War Crimes and the War on Terror

[jmm99]

and the USG is ordered to take "all necessary and appropriate diplomatic steps to facilitate the release."

Here we have a story of extraordinary rendition, barbaric conditions of imprisonment, and very enhanced interrogations leading to false confessions - all taking place in Astan and verified by uncontested testimony.

Torture, delay may end “enemy” status
Monday, June 22nd, 2009 8:18 pm | Lyle Denniston

In a significant legal breakthrough for Guantanamo Bay prisoners, the federal judge who has previously upheld the broadest detention power for the government ruled on Monday that torture of an individual and the passage of time after he had ties to terrorism can end his status as an enemy of the United States, and require his release.

U.S. District Judge Richard J. Leon, ruling in the case of a Syrian national who had links to Al Qaeda in Afghanistan years ago, ruled that the prisoner could no longer be detained as an “enemy combatant,” and the government must make efforts to release him “forthwith.” ....

No doubt the acts proved were war crimes, the individuals who committed them are war criminals, and their organization can be fairly found to be a criminal enterprise. However, do not expect any prosecutions of the individuals or the organization - which is named al-Qaeda.

The facts from Judge Leon's public opinion (a longer classified opinion is sealed) are interesting:

(pp. 2, 7-8)

Petitioner Janko, a Syrian citizen who spent his teen years in the United Arab Emirates, was taken into custody by U.S. forces in January 2002 in Kandahar, Afghanistan. (Unclassified Return ~~ 1-2, 19 [Dkt. #117]; Unclassified Traverse at 81-82, 92 [Dkt. # 151].) Initially he was held and questioned at Kandahar Air Base, until he was ultimately taken to Guantanamo Bay, Cuba, after approximately 100 days. (Unclassified Return ~ 42, n.12; Unclassified Traverse at 2.)
....
The Government contends, in essence, that petitioner Janko is an enemy combatant because he was "part of ... Taliban or al Qaeda forces" at the time he was taken into custody by U.S. forces in 2002. In particular, the Government argues that petitioner Janko: (1) traveled to Afghanistan to participate in jihad on behalf of the Taliban; (2) stayed for several days at a guesthouse used by Taliban and al Qaeda fighters and operatives in early 2000, where he helped clean some weapons; and (3) thereafter attended the al Farouq training camp for a brief period of time. (Unclassified Return ~~ 27-30,32-40; Unclassified Oral Arg. Tr. 21-27.) The Government effectively concedes, however, that petitioner Janko was not only imprisoned, but tortured by al Qaeda into making a false "confession" that he was a U.S. spy, and imprisoned thereafter by the Taliban for over eighteen months at the infamous Sarpusa prison in Kandahar. [3] (Unclassified Return ~ 42; Unclassified Traverse at 13-15, 84-86.)

[3] Petitioner Janko contends, and the Government does not dispute, that the conditions in the Sarpusa prison were so terrible - if not horrific - that many prisoners died while incarcerated. Prisoners were fed next to nothing, and the prison was overcrowded, unsanitary, and lacked sufficient medical care. (Unclassified Traverse at 86; Unclassified Traverse Ex. 4, ~ 37; Unclassified Traverse Ex. 12, ~ 3.)

Notwithstanding these extraordinary intervening events, the Government contends that Janko was still "part of' the Taliban and/or al Qaeda when he was taken into custody after U.S. forces learned from a reporter of petitioner's presence at the abandoned prison in January 2002. [4](Unclassified Oral Arg. Tr. 9, 31; Unclassified Traverse at 86-92.)

[4] Originally, the Government and the U.S. media mistook Janko as one of a number of suicide martyrs based on videotapes captured at an al Qaeda safehouse. (Unclassified Oral Arg. Tr. 12-13; Unclassified Traverse at 92-93.) The tape involving Janko, however, was actually an al Qaeda torture tape. (Unclassified Oral Arg. Tr. 12-13; Unclassified Traverse at 2.) Nevertheless, upon debriefing and interrogating Janko, the Government came to realize he had had a preexisting relationship with al Qaeda prior to his incarceration by the Taliban. (Unclassified Return ~~ 1,42 n.12.)

Such was the DoJ's case. The detainee's case added some more facts:

(pp.8, 8-9)

Petitioner, not surprisingly, disagrees. He denies going to Afghanistan to participate in jihad and, while he admits to staying briefly at a Taliban guesthouse, he claims he did so against his will. (Unclassified Oral Arg. Tr. 6, 18; Unclassified Traverse at 44.) Moreover, he contends that he was later taken "involuntarily" to the al Farouq training camp, fearing that he would be killed if he did not comply. (Unclassified Oral Arg. Tr. 6, 18; Unclassified Traverse at 46-48.) While there he claims he received no more than small arms training and asked to leave on his eighteenth day in residence. (Unclassified Oral Arg. Tr. 18; Unclassified Traverse at 49.) Finally, he claims that he was accused by al Qaeda leaders of being a spy and was tortured [5] repeatedly by al Qaeda for three months until he gave a false "confession" to being a U.S. spy. (Unclassified Oral Arg. Tr. 7, 18; Unclassified Traverse at 84-86.)

[5] Although a detailed description ofthe various torture methods the petitioner was subjected to by al Qaeda is beyond the scope of this opinion, it would be fair to say that if his account is true even in part, al Qaeda's conduct would be fairly characterized as barbaric.

In addition, petitioner stresses, and the Government does not dispute, that by the point in time he was taken into U.S. custody in 2002 he was a free man that had been left behind in late 2001 at the Sarpusa prison with thousands of Northern Alliance prisoners. (Unclassified Oral Arg. Tr. 5-8,20; Unclassified Traverse at 86-92.) Thus, petitioner contends, in essence, that even if he had had a prior relationship with al Qaeda or the Taliban in 2000, his subsequent torture and imprisonment for eighteen months vitiates that relationship to such a degree that he no longer was "part of" al Qaeda or the Taliban when he was taken in custody in 2002. The Government disagrees.

Such was the detainee's case.

Judge Leon's analysis of this evidence is a bit long to quote (pp.9-12), but it starts and ends with:

By taking a position that defies common sense, the Government forces this Court to address an issue novel to these habeas proceedings: whether a prior relationship between a detainee and al Qaeda (or the Taliban) can be sufficiently vitiated by the passage of time, intervening events, or both, such that the detainee could no longer be considered to be "part of" either organization at the time he was taken into custody. The answer, of course, is yes. Accordingly, the question before the Court today is whether that is exactly what happened in this case. For the following reasons, I believe it is.
....
Thus, combining the limited and brief nature of Janko's relationship with al Qaeda (and/or the Taliban), with the extreme conduct by his captors over a prolonged period of time, the conclusion is inescapable that his preexisting relationship, such as it was, was sufficiently vitiated that he was no longer "part of' al Qaeda (or the Taliban) at the time he was taken into custody by U.S. forces in 2002. Accordingly, the Government has failed to establish by a preponderance of the evidence that Janko was lawfully detainable as an enemy combatant under the AUMF at the time he was taken into custody, and the Court must, and will, GRANT his petition for a writ of habeas corpus and order the Government to take all necessary and appropriate diplomatic steps to facilitate his release forthwith.

This case (so far) is unique - comparable to the case of the Taliban informant who was also ordered to be released under the same conditions.

[jmm99]

In the recent war budget bill, there are a number of limitations on transfer of detainees from Gitmo. One page read - punch this.

[jmm99]

Judge John Bates has issued an opinion and order in his remaining Bagram habeas case.

These cases and Judge Bates' prior decisions have been reported here and here in this thread.

The gist of the opinion (leaving aside the Court's entensive discussion of 4 technical arguments made by Wazir and rejected by the Court) is this:

Haji Wazir, an Afghan citizen, is being detained by the United States at the Bagram Theater Internment Facility at Bagram Airfield, Afghanistan. On September 29, 2006, Wazir filed a petition for a writ of habeas corpus, and respondents then filed a motion to dismiss for lack of jurisdiction on October 3, 2008. Respondents had filed similar motions to dismiss three other habeas petitions filed by Bagram detainees, and on November 17, 2008, the four cases were consolidated for argument. This Court heard oral argument from the parties on January 7, 2009.

On April 2, 2009, the Court denied respondents' motion to dismiss the petitions filed by the other three Bagram detainees but deferred ruling on respondents' motion to dismiss the petition filed by Wazir. See Al Maqaleh v. Gates, 604 F. Supp. 2d 205 (D.D.C. 2009).

Applying the multi-factor test set forth by the Supreme Court in Boumediene v. Bush, 128 S. Ct. 2229 (2008), this Court reasoned that the other three petitioners, none of whom are Afghan citizens, are entitled to invoke the Suspension Clause of the Constitution, Art. I. § 9 cl. 2. Hence, the Court concluded, § 7(a) of the Military Commissions Act of 2006 ("MCA"), Pub. L. No. 109-366, 120 Stat. 2600, which deprives courts of jurisdiction to entertain habeas petitions filed by individuals designated by the President as "enemy combatants," is unconstitutional as applied to those three petitioners. As to Wazir, however, the Court determined that "there is a real
possibility of friction with the Afghan government with respect to Afghan detainees." 604 F. Supp. 2d at 229. In balancing the Boumediene factors, this possibility of friction was sufficiently weighty to defeat Wazir's claim that he is entitled to invoke the protections of the Suspension Clause. Id. at 231.

The bottom line of these 4 cases provides us with the start of a "bright line" set of rules for the Bagram habeas cases - just in Judge Bates' opinion since these cases will probably be appealed to the DC Circuit and then SCOTUS.

1. Afghan national, captured in Astan and held at Bagram - no habeas review.

2. Afghan national, captured elsewhere and transferred to Bagram - no court decision to date.

3. Non-Afghan national, captured in Astan and held at Bagram - no court decision to date.

4. Non-Afghan national, captured elsewhere and transferred to Bagram - habeas review limited to issue of combatant status.

[Boondoggle]

So does this fact pattern encompass the "ticking bomb" of exigent circumstances requiring extraordinary means? Based on the fact on American captured on the battlefield, outside those captured by the Iraqi Army in 2003, has been kept alive more than hours/days, personally I think it may find that narrow window. That said, this can play out so many ways, but I fear its a race against time before they make another video.

BREAKING NEWS — Insurgents have captured an American soldier in eastern Afghanistan, the U.S. military said Thursday. Spokeswoman Capt. Elizabeth Mathias said the soldier went missing Tuesday. "We are using all of our resources to find him and provide for his safe return," Mathias said.


http://www.foxnews.com/story/0,2933,529816,00.html

[jmm99]

So does this fact pattern encompass the "ticking bomb" of exigent circumstances requiring extraordinary means?

What "extraordinary means" ?

[davidbfpo]

According to Amnesty UK Ireland has agreed to take some G-Bay detainees; not seen this in the UK media, but then it's only across the water.

Google shows that the Irish decision to take two Uzbek detainees was made in January 2009 and was re-affirmed in a visit to Washington D.C.: http://www.independent.ie/breaking-n...s-1792700.html

Better than none.

davidbfpo

[jmm99]

since it seems a bit of inter sept separation exists between Minister for Foreign Affairs Micheál Martin and the Minister for Justice Dermot Ahern:

Irish Times [Dublin]
Tuesday, December 30, 2008
Ahern and Martin at odds over Guantanamo
....
MARY FITZGERALD, Foreign Affairs CorrespondentTHE DEPARTMENT of Justice yesterday reiterated Minister Dermot Ahern's recent statement that the Government is not contemplating the resettlement in Ireland of exonerated Guantánamo detainees.

Last month The Irish Times reported that the Department of Justice and the Department of Foreign Affairs had divergent views on the issue, with officials from the latter believing the Government could earn kudos with the incoming Obama administration by agreeing to resettle at least one detainee.

In answer to a subsequent parliamentary question, the Minister for Justice acknowledged there had been "discussions" with US authorities regarding inmates who have been cleared for release. Officials had also had "informal contacts" with interested parties and lawyers representing one of the exonerated detainees, Uzbek national Oybek Jamoldinivich Jabbarov. It had been made clear to all concerned that Ireland is not contemplating the relocation here of any detainees, Mr Ahern said.

In an interview published yesterday Minister for Foreign Affairs Micheál Martin expressed support for the idea of accepting exonerated detainees for resettlement, reportedly describing it as a "logical follow-through" from the Government's call for the facility to be shut down. The Minister indicated he would raise the issue in Cabinet.

A spokeswoman for the Department of Justice yesterday said Mr Ahern's statement on the issue still stood. "The department is not aware of any change in Government policy," she added.

It seems that the sept Ahern has a degree of intra sept separation equal to that of the Irish Sea, IF Taoiseach Bertie Ahern actually made the exact statement propounded by Amnesty International Ireland - from Kilkenny Alive:

Amnesty welcomes Taoiseach’s statement on Guantánamo prisoners
Date: Wednesday, March 25, 2009

AMNESTY International Ireland has welcomed reports that the Taoiseach told journalists during his visit to the US that Ireland would take, 'a proportionate amount, a small number' of cleared Guantánamo prisoners. Between fifty and sixty of the remaining 250 prisoners have been cleared for release but cannot be sent home because of fears for their safety.

A bit of optimism by AII perhaps.

---------------------
I'm reliably informed that the sub-sept MacCarthy Reagh will remain neutral on this issue until they receive instructions from the British Crown. The Crown, however, is loath to communicate with that group because its 1642 treason attainders with corruption of blood have not been removed.

Definition of an Irishman: A descendant of Brits who learned how to swim.

A lot of true history in the preceding two paragraphs of quasi-nonsense.