Gitmo and the lawyers!

[davidbfpo]

Check this story on WSJ:

http://www.opinionjournal.com/editor...l?id=110009758

Kuwaiti GITMO prisoners and their release - after a legal and PR campaign.

davidbfpo

[LawVol]

Although the "PR" campaign discussed inthis article is quite extensive, it is actually nothing new. Attorneys do this all the time. Think about trial footage you see on TV. Usually, the defendant is dressed in a nice suit and, if he speaks, he does so in a relatively articulate manner. You won't see him in his gang-banger clothes or using the lingo he normally resorts to. Perception is reality. Even in trial, jurors are often swayed by intangible factors. A male attorney may be able to get away with being agressive while a female attorney doing the same thing is simply being a bitch. The fact is that people are swayed by emotion and attorneys will look to that. As a prosecutor, I do it. I choose words carefully and based on the meaning I want to convey. These guys are simply doing the same thing to a greater degree.

The problem here, is that the US government gave them the opportunity to do this. Whether you believe we should fight this war using the criminal court system or not is irrelevant. We are doing it. In a war that could possibly have no end, we must have some method of closure with respect to individual detainees. The world public will not permit us to simply lock them up forever without some form of trial. We are already seeing the backlash from keeping them this long without a trial.

We lost valuable time and created an opportunity for this "PR" campaign by trying to create a new system to try these guys when we already had one in place. We should have used the Uniform Code of Military Justice and courts-martial as the method of trial. It has procedures that account for all the constitutional protections afforded in civilian courts and allows us to handle classified information. It can also accomodate the use of civilian attorneys. Moreover, we already have plenty of attorneys trained in this system that are available as prosecutors and defense attorneys.

By creating an entirely new system, we've opened the door for criticism and given an appearance that we've stacked the deck. I know some of the guys that have worked in and concerns about this system and I trust their opinion. There is something wrong. If we're going to try them, it has to be a fair trail. If all you want to do is hang them, then do it; but don't try to justify it with some pretense of due process.

[Stan]

Julia Tarver, an attorney representing several detainees at Guantanamo Bay.

"The level of hopelessness in the camp has reached a point where our clients are literally vowing they have no other choice but to die. The treatment they are receiving from the guards and the medical staff at Guantanamo is very, very disturbing. What we've learned is that in some sort of ill-advised attempt to stop the hunger strike, the guards and the medical staff are using intervention, medical intervention, to actually inflict forms of torture on our clients. They claim that in order to preserve life at the base they are inserting tubes into the clients' noses that go down into their stomachs, and they're able to be fed that way. But the problem is the clients have told us horrific stories repeatedly, from different clients, about how these same tubes are being forcibly inserted in by riot guards, how they're taken from one detainee and inserted into the next detainee with no sanitization, with the bile and the blood still on the tube from the previous detainee.

More on the story: Torture, Suicide and Imprisonment: A Look Back at Five Years of Guantanamo

http://www.democracynow.org/article..../01/11/1536252

[LawVol]

I'm just not buying this type of argument. The Gitmo facility is surely the most inspected and observed penal-type facility in the world. The Red Cross is there often. I personally know attorneys that have been deployed there and the care these guys receive is better than our guys get at Walter Reed. The cells are completely clean. They have 3 hots a day, time to pray, exercise, etc. In fact, many of the detainees have actually gained weight while there. A few have actually asked to stay when they were released.

As for the involuntary feeding tubes, what would they say if we just let the guys die of starvation? Could you imagine the rancor?

[Jedburgh]

It was almost two years ago that there was a sudden flurry of articles in military professional pubs voicing second thoughts about the effectiveness of Gitmo. With the shift we've had in Congress, and presidential elections rushing fast upon us, I believe there's a lot more pointed discussion of the issue coming....

...here's some of the older material:

From Joint Forces Quarterly: Guantanamo Bay: Undermining the Global War on Terrorism

...In addition to undermining the rule of law, the consequence of the policy at Guantanamo has been to fuel global anti-Americanism, which undermines U.S. influence and effectiveness, degrades the domestic support base, and denies the United States the moral high ground it needs to promote international human rights. It appears that these costs have far outweighed the operational benefits that the detainee operations have generated...

From Parameters: Six Floors of Detainee Operations in the Post 9/11 World

...There is good reason for the international community to agree upon more understandable and more stringent measures against unlawful combatants and terrorists in order to deter hostile forces from adopting such tactics. But we must not legitimize inhumane measures and debase ourselves by adopting anything like the tactics of the common enemies of mankind...

From Military Review: Defining Success at Guantanamo Bay: By What Measure?

...Success in the struggle against terrorism will be measured in generations. When future strategists look back on the early years of this decade, they will not judge Camp Delta on the relative value of intelligence reports but on humanitarian issues, how detainees were treated, the legitimacy of the trial process, whether laws reflected evolving definitions of “combatants”, and how detainees were ultimately dealt with when America dismantled terrorist groups. As we discover what the law will not allow, serious action to define what is permissible will follow. Justice—evidenced by whether criminal defendants were successfully defended or prosecuted, acquitted or convicted, fairly sentenced and safely incarcerated or repatriated—will be the enduring legacy of America’s actions at Guantanamo...

[zenpundit]

Part of the problem is that the Bush administration has been in no great hurry to mete out justice, military or otherwise. Consider the speed with which the German and German-American saboteurs in the Ex Parte Quirin case were caught, given a military trial ( by special tribunal if I recall), sentenced, had an appellate review by SCOTUS and then duly executed. Now consider Khalid Sheikh Mohammed, who is just now, perhaps, facing the initial steps in applying military justice.

Yes, in the wake of 9/11 there were overriding intelligence concerns with interrogating ranking members of al Qaida in American custody but five years? That speaks to an avoidance of justice as a policy with the unwelcome necessity of meting out death sentences to some of the illegal combatants and acquitting and/or paroling others. The inability of senior administration officials to settle differences of policy, authority and jurisdiction between the Departments of Justice, Defense, State and the CIA are also visible in the cases of Hamdi, Moussaoui and Padilla.

A streamlined, very tough but impartial and constitutional system to try illegal combatants for breaking the laws of war is very " doable" - if the political will exists to carry it out.

[120mm]

"Lack of political will" is the correct phrase for most of the last 5 1/2 years of "war". And the end result appears to be no different by Bush and Co. "wussing out" on certain critical issues.

[Culpeper]

June 3, 2007
A Legal Debate in Guantánamo on Boy Fighters
By WILLIAM GLABERSON

The facts of Omar Ahmed Khadr’s case are grim. The shrapnel from the grenade he is accused of throwing ripped through the skull of Sgt. First Class Christopher J. Speer, who was 28 when he died.

To American military prosecutors, Mr. Khadr is a committed Al Qaeda operative, spy and killer who must be held accountable for killing Sergeant Speer in 2002 and for other bloody acts he committed in Afghanistan.

But there is one fact that may not fit easily into the government’s portrait of Mr. Khadr: He was 15 at the time.

[120mm]

At the age of 13, the German enclave where I grew up in Northwest Iowa declared me "a man". I could shave, I owned 20 head of cattle, 3 horses and a couple hundred pigs. I could drive a truck, owned guns and I sat with the other "men" and drank beer. (Interestingly, driving the truck and drinking beer in these circumstances was perfectly legal at the time, in Iowa.)

While I still lived with my parents, and went to school, I was treated as an adult by the other adults in my community.

Bottom line, you'll see why I don't see a problem with treating this former 15 year old as an "adult" combatant. The question is; why is it taking so long to categorize these guys as legal/illegal combatants and then dealing with them?

[goesh]

Yup, if you can do the crime, you can do the time. I hear ya' 120mm - at age 12 I was doing a man's work on a tractor and my older brother at age 10 was doing a man's work in the fields. there were alot of 17 yr olds in Viet Nam in the early years and I have ancestors that were fighting Indians as young teens and had engaged the Brits in one battle each before the age of 18.

[slapout9]

The process to charge a juvenile as an adult is pretty straight forward in Alabama it is just a due process thing. Why it takes so long in Gitmo is a very good question. LawVol this is your territory what's up with that?

[LawVol]

I can't help you on that one Slapout. I'm only qualified to offer opinions on the law and I'm not sure if what they are doing down there qualifies as law. Rather than simply use the UCMJ for trying these guys, they've created something else that has alot of people concerned. The information sharing isn't done very well; you are in the dark unless you're involved with the process. I do know a guy that I respect alot that resigned his position there and is leaving the service. It seems a little strange coming from the same country that wants to spread law and order while wearing the white hat. But I digress...

Nice avatar by the way!

[slapout9]

LawVol, thanks anyway.....Idea ask General Dunlap about this.

[Jedburgh]

CTC, 25 Jul 07: An Assessment of 516 Combatant Status Review Tribunal (CSRT) Unclassified Summaries

...Between July 2004 and March 2005, the Department of Defense (DoD) conducted Combatant Status Review Tribunals (CSRT’s) for 558 detainees being held at U.S. Naval Base Guantanamo Bay, Cuba (GTMO). The DoD’s objective in conducting this tribunal process was to determine whether those detainees continued to warrant the ‘enemy combatant’ designation through a non-adversarial, administrative status review process.

In early 2005 3 DoD (the Office for the Administrative Review of the Detention of Enemy Combatants) released 517 CSRT (pronounced “see-cert”) unclassified summaries.4 These unclassified summaries, prepared in advance of the actual hearings, informed the detainees about the unclassified basis for their detention as enemy combatants. Of the 517 unclassified records, one of those records is a duplicate, which brings the total of CSRT unclassified summaries to 516. The DoD posted those 517 unclassified summaries (including the one duplicate) on its public website in response to a Freedom of Information Act (FOIA) request.

In 2007, the Office of Detainee Affairs in the Office of the Secretary of Defense, asked faculty at the Combating Terrorism Center (CTC) at West Point to review information recorded in the 516 CSRT unclassified summaries (hereinafter referred to as “CSRT records”) and provide an objective assessment of this information.

After querying the 516 CSRT unclassified summaries, the CTC found that 73% of the unclassified summaries meet the CTC’s highest threshold of a ‘demonstrated threat’ as an enemy combatant. The CTC established two other categories with four discrete proxy characteristics in each (‘potential threat’ and ‘associated threat’) in order to help assess whether the information in these records indicated these individuals posed or potentially posed a threat as an enemy combatant. The CTC found that six of the publicly available CSRT unclassified summaries contained no evidence that fit any of the CTC’s twelve threat variables....

Complete 39 page report at the link, plus:

Annex A - Assessment of the Seton Hall Report Findings

[Jedburgh]

26 Jul 07 HASC testimony on Upholding the Principle of Habeas Corpus for Detainees:

Stephen Oleskey, Counsel for Six Guantanamo Detainees

David Keene, American Conservative Union

Patrick Philbin, Former Associate Deputy Attorney General

LTC Stephen Abraham USAR

Daniel Dell’Orto, Principal Deputy General Counsel, DoD

Greg Katsas, Principle Deputy Associate Attorney General, DoJ

[Hownowcow]

It was almost two years ago that there was a sudden flurry of articles in military professional pubs voicing second thoughts about the effectiveness of Gitmo. With the shift we've had in Congress, and presidential elections rushing fast upon us, I believe there's a lot more pointed discussion of the issue coming....

You are absolutely right in your prediction that more is coming on this. I just returned from St. Louis and the "press sheet inspection" for the October issue of Joint Force Quarterly. On page 117 is a piece by Kyle Teamey that deals with detainees and counterinsurgency (this is already on our website). There will be three more articles on this issue in the January edition, one of which makes a case that is quite contrary to the 3rd place student essay that you cited from JFQ #39. In fact, Colonel Jim Terry's piece: "Habeas Corpus and the Detention of Enemy Combatants in the Global War on Terror" capably deconstructs the emotional arguments against the GTMO detention facility.

[Sarajevo071]

Guantanamo operating manual posted on Internet

The U.S. military's operating manual for the Guantanamo prison camp has been posted on the Internet, providing a glimpse of the broad rules and tiniest minutia for detaining suspected terrorists.

The 238-page manual, "Standard Operating Procedures for Camp Delta," is dated March 27, 2003, and signed by Army Maj. Gen. Geoffrey Miller, who was then the commander of the prison that still holds about 300 al Qaeda and Taliban suspects.

It appears to be an authentic copy of the rules as they existed at the time at the U.S. naval base in Cuba, a spokesman for the Guantanamo detention operation, Lt. Col. Ed Bush, said on Wednesday.

It says incoming prisoners are to be held in near-isolation for the first two weeks to foster dependence on interrogators and "enhance and exploit the disorientation and disorganization felt by a newly arrived detainee in the interrogation process."

Styrofoam cups must be confiscated if prisoners have written on them, apparently because prisoners have used cups to pass notes to other captives. "If the cup is damaged or destroyed, the detainee will be disciplined for destruction of government property," the rules say.
...

more here:
http://www.reuters.com/article/inter...24207020071114

[kehenry1]

Does this coincide with Yee's appearance on Syrian TV?


http://hotair.com/archives/2007/11/2...ated-at-gitmo/

[Jedburgh]

DoJ OIG, May 08: A Review of the FBI's Involvement in and Observations of Detainee Interrogations in Guantanamo Bay, Afghanistan and Iraq

....Our report found that after FBI agents in GTMO and other military zones were confronted with interrogators from other agencies who used more aggressive interrogation techniques than the techniques that the FBI had employed successfully for many years, the FBI decided that it would not participate in joint interrogations of detainees with other agencies in which techniques not allowed by the FBI were used....

Note the careful verbiage. Complete 438 page report (with redactions) available at the link.

[Jedburgh]

HRW, 9 Jun 08: Locked Up Alone: Detention Conditions and Mental Health at Guantanamo

Approximately 270 prisoners remain at Guantanamo, most of whom have been in US custody for more than six years without ever being charged with a crime. Some 185 of them—including many of the several dozen individuals already cleared for release or transfer—are now being housed in prison facilities akin to and in some respects more restrictive than many “supermax” prisons in the United States.

Such detainees at Guantanamo spend 22 hours a day alone in small cells with little or no natural light or fresh air. They are allowed out only two hours a day (often at night) to exercise in small outdoor pens. Except for the occasional visit by an attorney or a representative of the International Committee of the Red Cross (ICRC), they have little human interaction with anyone other than interrogators and prison staff. For many detainees, isolated confinement is not a time-limited punishment for a disciplinary infraction, but something they have faced day in, day out, for months and years.

None of the prisoners currently held at Guantanamo has ever been allowed a visit from a family member, and most of them have never been allowed even to make a single phone call home during the six-plus years they have been detained. Detainees receive virtually no educational or rehabilitative programming to help them pass the time.

The US government is quick to say that most prisoners at Guantanamo are not technically in solitary confinement because they can yell at each other through the gaps underneath their cell doors; they can talk to one another during recreation time; and they are allowed periodic ICRC and lawyer visits. The reality, nonetheless, is that these men live in extreme social isolation, cut off from family and friends, and even, to a large extent, from each other. They spend most of their days alone in totally enclosed cells, with no educational and vocational outlets, and little more than the Koran and a single book to occupy their minds—something that is of little use to those that are illiterate. As is to be expected, the conditions at Guantanamo have reportedly caused the mental health of many prisoners to deteriorate, as a number of the cases in this report suggest.

As officials at Guantanamo point out, some detainees pose significant security risks, and detainee management is easier when detainees are locked in their cells 22-plus hours a day. But such extreme and prolonged isolation violates international legal obligations, and can aggravate desperate behavior, potentially creating worse security problems over time. Should detainee mental health problems mount, as the limited available evidence suggests is already happening, the practice will also complicate ongoing efforts to resettle or repatriate many of these men.

Complete 59 page report at the link.