Crimes, War Crimes and the War on Terror

[jmm99]

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

[jmm99]

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.

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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.

[jmm99]

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........

[jmm99]

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

[jmm99]

Mohamed Jawad is charged as an unlawful enemy combatant, with attempted murder and committing serious bodily harm, based on a grenade thrown into military vehicle wounding 2 SF NCOs and their Afghan interpreter.

This is a very simple case factually. The guy either did it, assisted an accomplice to do it, or he didn't (i.e., was an "innocent by-stander"). It has received considerable press for reasons not material to the charges.

Charge Sheet at

http://www.defenselink.mil/news/Jan2...awadcharge.pdf

Defense Brief No.1

http://www.defenselink.mil/news/d200...on%20D-007.pdf

Defense Brief No.2

http://www.defenselink.mil/news/d200...20Detainee.pdf

[jmm99]

Omar Ahmed Khadr originally was charged with murder, attempted murder, conspiracy with AQ, providing support to AQ & spying - non-capital case on all counts.

As with Jawad, the murder part of the case is not factually complex - the guy did it or he didn't. The other charges are more akin to Hamdan.

Also, as with Jawad and more so, the Khadr case has generated a large press coverage on issues not material to the charges.

Quite a few pleadings & opinions have been filed in this case. Some are not worth looking at because they are heavily redacted (classified) - e.g., a 7MB .pdf file "06/04/2007 - Motion Session (Charges dismissed)" of 305 pages (95+% redacted). Two rulings of interest (to me) are linked below.

Charge Sheet

http://www.defenselink.mil/news/Apr2...drreferral.pdf

Filings Inventory thru 7 May 2008 (30 pages)

http://www.defenselink.mil/news/d20080508us-khadr.pdf

Ruling No 1 (Bill of Attainder)

http://www.defenselink.mil/news/Feb2...1attainder.pdf

Ruling No 2 (Child Soldier)

http://www.defenselink.mil/news/d20080430Motion.pdf

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I'll post something within the near future on upcoming events in Parhat (## 44 & 45) - the Uighur Muslim whose claim was basically this:

from Lyle Denniston, link in #45
Parhat is a Chinese citizen of Uighur heritage. The Uighurs reside mainly in the far-western Chinese province of Zinjiang, which they call East Turkistan. Parhat claims that he fled China because of oppression and torture there, and went to Afghanistan to fight against China. He claims that he had never engaged in any hostilities against the U.S., and that his only enemy is China.

The DC Circuit held on the facts that he was not an enemy combatant. The problem is what to do with Mr. Parhat, who has been found not guilty. China might like to take him, but that would probably mean a de facto death sentence for Parhat. This case has some aspects of a human rights case, where positions cannot be easily divided into left and right, liberal and conservative.

[jmm99]

This is a long series of posts, but they are needed to understand the last one - which is news.

Analysis: Escalating the Parhat case
Tuesday, August 19th, 2008 7:25 pm | Lyle Denniston
Analysis

In the annals of the ongoing constitutional battle in America’s courts over the “war-on-terrorism,” Shafiq Rasul, Yaser Esam Hamdi, Salim Ahmed Hamdan and Lakhdar Boumediene already have made history — especially in the Supreme Court. It now appears that Huzaifa Parhat could be the next detainee added to that list.

A member of a long-persecuted Chinese Muslim community, the Uighurs, Parhat is moving rapidly toward a courthouse showdown of major proportions.

He is attempting to become the first Guantanamo Bay detainee to take the witness stand in a civilian courtroom inside the U.S., to make a personal case for freedom, and, more significantly, he is seeking actual release into the U.S. to live, at least temporarily, with a group of Uighurs in the Washington, D.C., area. ...

http://www.scotusblog.com/wp/analysi...e-parhat-case/

This is no longer a run of the mill "enemy combatant" case, because Parhat can no longer be considered even an accused "enemy combatant". That follows from two facts:

1. The Court of Appeals' holding that the government, in his DTA hearing, had not introduced enough evidence to meet even the low "preponderence of the evidence" standard (the 50-yard line and a nose). Judging from that opinion, the evidence presented was multiple level hearsay, and not very pursuasive hearsay at that.

2. The Court of Appeals gave the government the chance to retry Parhat's DTA status. The government waived that right and declined to retry Parhat.

The problem is what to do with Parhat and the other Uighurd. Back to Lyle's analysis:

Parhat and the government agree that he should not be sent back to China, his home country, because of his apparently very real fears of further persecution. But the government has told the courts repeatedly it has been unable to persuade any other country to accept him. And, until it does, the government has argued, he must remain at Guantanamo to “wind up” his detention.

The situation with Parhat is apparently not an isolated one. An unknown number of detainees (the number could be substantial) want release, but do not want to be sent back to their home countries, for fear of torture or abuse. Even if ruled not to be enemy combatants, the “wind up” theory would keep them in the Guantanamo prison for unspecified periods.

Recent Chinese problems with Uighurs substantiate the practical problem. Another practical problem is that Parhat and his friends are not white lambs. Their story is that they came to Afghanistan to fight Chinese - the story makes more sense if they came there to learn how to fight Chinese.

If they were simply illegal immigrants to the US, the INS rules would apply; but we brought them here. We do not want to send them back to Afghanistan - they might change their mind about who their enemy is. And, I do not really want them living next door to me.

In light of the legal costs that will build up in this and related cases, the parties should make nice and agree that the government (our taxes) purchase a nice, secure Holiday Inn Express with room service. We might save some money that way.

In any event, here is Parhat's brief and its bottom line:

We concede that there is a substantial practical reason why this Court may wish to implement the Circuit’s ruling in stages. The government is authorized to transfer Parhat to an appropriate and safe third country. And nothing would prevent it from effecting a transfer by exercising its power to deport (again, to a proper country) even after Parhat were physically present. Accordingly, a practical balancing suggests that he should first be paroled here, under such reasonable conditions of release as the Court imposes. The Court may grant to the government a reasonable time to attempt to implement an appropriate transfer before final judgment is ordered in his habeas case. His presence here would, as a practical matter enhance chances of a transfer, and the Court might appropriately impose conditions to protect the government’s legitimate interest in so doing. This must happen promptly. The urgency of relief is only underscored by this Court’s recent determination that it may not intrude judicially into the conditions of confinement in Guantánamo.

http://www.scotusblog.com/wp/wp-cont...ct-8-15-08.pdf

A series of other detainee events ensued after 19 Aug, which seem best discussed one by one. However, one of them has an Uighur update

Detainee hearings start Oct. 6
Thursday, August 21st, 2008 10:12 pm | Lyle Denniston
......
Meanwhile, down the corridor from Judge Leon’s courtroom, U.S. District Judge Ricardo M. Urbina was holding a hearing on the fate of 17 members of an often-persecuted Chinese Muslim minority, the Uighurs, who are being held at Guantanamo. The Pentagon has decided that it will no longer seek to prove that five of them should remain designated as enemies, but the government has not yet found countries other than China to take them.

Judge Urbina chastised the government for saying in court papers that it was “constantly reviewing” its chances for releasing the Uighurs, and yet had not been able to decide whether all of them should remain at Guantanamo under the label “enemy combatant.”

The judge also suggested that he may agree to a request by the Uighur detainees’ lawyers that they be brought personally to the U.S., to appear in court to defend themselves against accusations of terrorist links. “Maybe that is an option,” the judge remarked.

Among the group whose cases are in Urbina’s court is Huzaifa Parhat, who is seeking release into the U.S. to live in the Washington, D.C., area temporarily while he seeks to win his release from continued captivity. The Pentagon has decided he is no longer an “enemy combatant,” but the government is fervently opposing any attempt to bring detainees to the mainland.

http://www.scotusblog.com/wp/detaine...s-start-oct-6/