The WP article is here. This case and other cases with much the same problems have been posted in "War Crimes". I'll try to get back to this later this afternoon or tonite - and see if I can link to the original declaration.
This case raises a number of issues.
The WP article is here. This case and other cases with much the same problems have been posted in "War Crimes". I'll try to get back to this later this afternoon or tonite - and see if I can link to the original declaration.
Where to start ....
The WP article, and another Gitmo article here (with a slant), deal with the Jawad and Khadr cases - both involving alleged grenade tossers.
Posts on the Jawad case are here (#63), and here (##121 & 124).
Posts on the Khadr case are here (#62), and here (#147)
Since this thread is about lawyers and Gitmo, we may as well start with some of the lawyers. The first thing we have is a tom cat p...ssing match between LTC (ret) Darrel Vandeveld and COL Lawrence Morris. That may or may not have anything to do with the merits. One thing sure - those two are not about to agree on anything.
We also have MAJ David Frakt (defense for Jawad) who has elected to try the case in the media. That is his right - since he is not under a gag order. I wouldn't chose to do that, but that is a matter of taste, not ethics. Watched the MAJ on TV last nite and was not that impressed (purely IMO).
The only lawyer I personally know who is involved in one of the Gitmo cases is Mike Cooper, pro bono defense for one Adel El Ouerghi, an alleged "Tora Bora boy" with some Tunisian problems. Mike is older than I and younger than Ken.
Mike has chosen the quiet approach (via diplomacy through DoS Legal Advisor's Office) to find a new home for his client. Mike's suggestion to the court is here. No merits decision yet that I could find. If diplomacy doesn't work, then Mike has reserved the habeas route.
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These two grenade cases (like many others) involve two separate issues:
1. Whether and how long the detainees should be detained, which is a CA 3 question.
2. Whether the detainees are guilty of criminal charges (murder and attempted murder), which is a Federal statutory question.
The media mixes these two issues with reckless abandon - and so do defense counsel since the criminal charges require a higher standard of proof and the evidence (that which exists) is weaker.
The problem of missing and undisclosed evidence is a valid gripe (IMO), which has been discussed in a number of "War Crimes" posts.
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Sending them all back to Bagram - and starting from square one - has some merit. Release for all - no; release for those against whom there is no probable cause to find them armed combatants or AQ adherents - yes.
Only problem with that is that the DC District has hold orders on all of the habeas detainees - limited to Gitmo. The Federal judges will eventually (within this year) decide which detainees should be held and which should be released. Those hearings are solely on the lawfulness of detention, not what crimes may or may not have been committed.
That process will continue unless DoJ decides to fold on all of the cases. If these decisions pile up, the Obama administration may simply decide to let the Federal judges decide the detention issue.
Judge Leon's decision ...
in the El Gharani case, which is here (post #165), illustrates many points raised in prior posts above.
If the other Federal judges would move with his diligence over the next 6 months, these Gitmo cases could be cleaned as to the issue of detention.
That would still leave the questions of where and how long to detain - as well as the question of what crimes (if any) should be charged against those whose detentions are found valid. Those questions must be addressed by the Obama administration in specific terms.
Hypothetical questions.
Suppose we simply release them to wherever. Over the following few years, a few will initiate lawsuits, some will try to build useful lives, and so on. Some will almost certainly pop up again in terrorist or insurgent actions. After the first couple of incidents where the good guys take casualties from recycled bad guys, what is the likely response of the good guys when presented with the opportunity to take a prisoner?
Second question concerns potential trial rules. Are we going to see these people released because nobody read them their Miranda rights? Will they be released because the troops were too busy fighting to properly gather evidence? Will they be released because we sent troops instead of cops, lawyers and public defenders?
I'm also confused about just exactly what has gone on. These people were captured on the battlefield. They went through the tribunals, I thought, to determine a. whether they were engaged in acts of war and b. whether they were "protected persons" as defined by the GC. If the answers were no or yes, I thought they were released. I also thought that if there was too much uncertainty, they were released, which led to our guys meeting some of them on the field of battle again. Did I miss, or misunderstand, something? Haven't we been following the GC by determining their status? Aren't the people still in Gitmo the ones who were determined a. to have been engaged in acts of war and b. to be unprotected persons under the definitions of the GC?
John Wolfsberger, Jr.
An unruffled person with some useful skills.
Your questions aren't hypothetical, J. Wolfsberger.
At least, I don't think they are. I'd be willing to bet a bunch of money that the first 'hypothetical' has occurred, is occurring and will continue to do so due to the "catch and release" policies. Joe is not stupid...
Policy makers sometimes let their idealism or urge to please get in the way of their common sense.
For the second, I don't doubt it'll get that bad in some courts.
For the last, mostly true, I think but there are a few of questionable status who are the cause a lot of friction due to trials by media, adverse publicity and / or some curious actions by DoJ -- most caused, I'm sure by some Intel Agency worried about releasing too much info in an Unclas forum.
However, I think I totally understand your logic and agree...
JW: Answers in reverse order ...
I'll keep this short. The basic problem was that CSRT review was flawed (not so much as it was written, but in how it was run and staffed). The net result was that no one had any confidence that all the bad guys were really bad guys. That was exemplified in the two completed MCA trials, where the military judges re-determined (before the merits hearings) the detainee's status as an "enemy combatant" ("unlawful combatant"). It also has been proved by the 6-3 release score in the habeas cases decided by Judge Leon (not a liberal by any test).[3] I'm also confused about just exactly what has gone on. ...
The simple issue of a detainee's status (EC or not) is not rocket science, since it is really a question of whether there is probable cause (50% + a nose) to hold. That question is decided by Federal and state magistrates (lower level judges) in 100s of cases every day. Ken hits on part of the problem (secrecy) which was as much DoD and Bush WH policies as intel. As the Federal court cases prove, classified information is not a valid issue. It has been handled without problems to the US in many detainee cases.
In any event, the DoJ (not the detainees and not the courts) took the initiative to scrap the CSRT process - and the DC Circuit in Bismullah agreed with DoJ, as reported here (#164). So, EC status will have to be re-determined in each of the habeas cases - as Judge Leon is doing.
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As to Miranda - definite "No release" under present MCA rules. If torture (defined in MCA) or "totality of circumstances" proves the unreliability of a statement, the statement must be excluded. But, that does not release the detainee if other evidence proves EC status. See how Judge Leon (link in #35 above) went through the charges and evidence item by item. He was more than willing to remand the detainee to custody if the DoJ could win on only one item. It couldn't make a preponderence on any item.[2] ... Are we going to see these people released because nobody read them their Miranda rights? Will they be released because the troops were too busy fighting to properly gather evidence? Will they be released because we sent troops instead of cops, lawyers and public defenders?
What I'm seeing in these cases, is that the field investigations were fine. The problems have been loss of evidence (e.g., chain of custody) which was properly collected by troops in the field; and the failure to follow up the leads suggested in that evidence. Those failures were DoD and DoJ failures (in part caused by transfer of detainees and evidence between commands and agencies). IMO that is the main reason for secrecy in these cases - call it CYA. In this area, our troops can walk and chew gum at the same time (without added cops, lawyers and public defenders). The same can't be said for DoD and DoJ.
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IMO (not a legal analysis) -[1] Suppose we simply release them to wherever. Over the following few years, a few will initiate lawsuits, some will try to build useful lives, and so on. Some will almost certainly pop up again in terrorist or insurgent actions. After the first couple of incidents where the good guys take casualties from recycled bad guys, what is the likely response of the good guys when presented with the opportunity to take a prisoner?
The good guys will (1) adopt their own release policy (detention or a form of release); (2) render the detainees hors de combat (any of Indian ancestry out there still adept at hamstringing ?); or (3) kill the detainees. All according to the situation and the commander.
Here is one view from MAJ "Fury". Context: Some AQ surrendered at Tota Bora. A group of them, escorted by Ali's muhj, ran into MSS Grinch (a composite Delta-SBS force of about two dozen).
The "Grinch boys" and their attached Arab linguist did get near the AQ prisoners and engaged in a brief photo op and debriefing, including one AQ who responded to a question about UBL by saying: "I could tell any Muslim brother where Sheik Usama is; and they wouldn't tell you."Upon seeing the American commandos, the muhj became nervous, clearly not wanting the boys near their prisoners. A rumor had spread after the laughable surrender deal a few days earlier that the Americans would kill all prisoners in cold blood. In a war zone, that wasn't necessarily a bad reputation to have.
Dalton Fury, Kill Bin Laden (2008), pp.269-270, which is available here (a good book for JAG officers to consider in advising go and no-go).Every nervous muhj guard present during this exchange thought the next action would be an American commando putting a .45-caliber hard ball into the prisoner's smart-ass mouth. But we are more civilized than our terrorist adversaries, a characteristic seen as a sign of weakness by al Qaeda's ilk, and let them live. In a war zone with these people, such compassion isn't such a good reputation to have.
I will keep blowing my trumpet that "a law of war" must be based on actual reciprocity in practice. Otherwise, it will not work.
The Obama administration would do well to remember that when it makes the "new rules" in this and other areas (e.g., targeted killings).
Thoughts...
I believe that (1) would be precluded by the commands; (2) Is highly unlikely. Most Americans do not go in for torture, mutiliation or unnecessary wounding; to be sure, some do but they're a minority (3) but most will kill someone in a heartbeat -- and what the commanders says or wants may or may not have an impact; most firefights are not very well organized...Originally Posted by jmm99
I disagree. Fiction is not a good guide for lawyers...Dalton Fury, Kill Bin Laden (2008), pp.269-270, which is available here (a good book for JAG officers to consider in advising go and no-go).I do not disagree with you on "a law of war" but would remind you that Ali or Joe do not always heed the laws or their bosses; sometimes they think for themselves and do what makes sense to them. Americans in particular are very much into independent action and making decisions. They also tend to be selfish and to dislike excessive or unnecessary work, so catching the same guy three times in three months doesn't seem to them to be really smart...I will keep blowing my trumpet that "a law of war" must be based on actual reciprocity in practice. Otherwise, it will not work.I'm unsure what you mean by targeted killings. if you mean the attacking with direct action groups -- or Hellfires from predators -- of so-called 'high value targets' or the leaders of insurgent or opposition groups, I suspect you'll be disappointed. That's a technique that's as old as warfare and it works...The Obama administration would do well to remember that when it makes the "new rules" in this and other areas (e.g., targeted killings).
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