Crimes, War Crimes and the War on Terror

[ODB]

Lawyers muddy the whole mess and we get nowhere......just drags on until everyone forgets about it and they live long happy lives with Playstation 3's, gourmet meals, and all the amenties of a 5 star resort.

[jmm99]

From plea bargain (which trumps) - 1 year at Gitmo + 7 years in Canada (maybe). Coverage from Toronto Sun, Omar Khadr gets 40 years (well "yes", but "no"), with a comment from a Sun reader:

I hope this worthless piece of traitorous trash never ever sets foot back in Canada again. Send him back to Afghanistan where he really wants to be. Then remove not only his citizenship but that of his traitorous family as well and deport them to be with him where they all belong. He is a piece of work and a very poor sorry excuse for a Canadian. I hope he and his family rot in hell.

And so it may go.

Links to plea bargain and US-Canada diplomatic notes.

Regards

Mike

[jmm99]

Mohammedou Ould Salahi was granted habeas by Judge Robinson (reported in post # 497).

The Court of Appeals reversed, adding to a string of DoJ succcesses before the DC Circuit (emphasis added):

This case is more than merely the latest installment in a series of Guantanamo habeas appeals. The United States seeks to detain Mohammedou Ould Salahi on the grounds that he was “part of” al-Qaida not because he fought with al-Qaida or its allies against the United States, but rather because he swore an oath of allegiance to the organization, associated with its members, and helped it in various ways, including hosting its leaders and referring aspiring jihadists to a known al-Qaida operative. After an evidentiary hearing at which Salahi testified, the district court found that although Salahi “was an al-Qaida sympathizer” who “was in touch with al-Qaida members” and provided them with “sporadic support,” the government had failed to show that he was in fact “part of” al-Qaida at the time of his capture. The district court thus granted the writ and ordered Salahi released. Since then, however, this Court has issued three opinions—Al-Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010); Bensayah v. Obama, 610 F.3d 718 (D.C. Cir. 2010); and Awad v. Obama, 608 F.3d 1 (D.C. Cir. 2010)—that cast serious doubt on the district court’s approach to determining whether an individual is “part of” al-Qaida. We agree with the government that we must therefore vacate the district court’s judgment, but because that court, lacking the benefit of these recent cases, left unresolved key factual questions necessary for us to determine as a matter of law whether Salahi was “part of” al-Qaida when captured, we remand for further proceedings consistent with this opinion.

Two articles at Lawfare, Comments on Salahi and Press Release of the Day.

Regards

Mike

[davidbfpo]

The new UK government appears torn over whether to keep this option, which is effectively house arrest, albeit of varying intensity, e.g. no GPS capable tags. In opposition the Lib-Dems were against, plus several prominent Tories; this article is a good insight into the issue:http://www.guardian.co.uk/commentisf...terrorism-laws

A different columnist, from a conservative viewpoint, within a longer article adds his view:http://www.telegraph.co.uk/comment/c...r-enemies.html

Currently the UK has:

only nine people are currently under them

and seven have absconded abroad whilst under 'control'.

[jmm99]

before either a civilian court (often a liberal-left fav) or a military commission (often a conservative-right fav), if the WP's sources are accurate.

Opposition to U.S. trial likely to keep mastermind of 9/11 attacks in detention

By Peter Finn and Anne E. Kornblut
Washington Post Staff Writers
Saturday, November 13, 2010; 12:38 AM

Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, will probably remain in military detention without trial for the foreseeable future, according to Obama administration officials.

The administration has concluded that it cannot put Mohammed on trial in federal court because of the opposition of lawmakers in Congress and in New York. There is also little internal support for resurrecting a military prosecution at Guantanamo Bay, Cuba. The latter option would alienate liberal supporters.

The administration asserts that it can hold Mohammed and other al-Qaeda operatives under the laws of war, a principle that has been upheld by the courts when Guantanamo Bay detainees have challenged their detention.

The White House has made it clear that President Obama will ultimately make the decision, and a federal prosecution of Mohammed and four alleged co-conspirators has not been ruled out, senior officials said. Still, they acknowledge that a trial is unlikely to happen before the next presidential election and, even then, would require a different political environment. .....

As previously noted by me, indefinite detention of KSM under military law, without criminal prosecution via either civilian or military trial, would not break JMM's heart.

Jack Goldsmith was an early proponent of indefinite detention for such as KSM - going back to 2005, as we see in today's Lawfare article, The Goldsmith-Wittes-Posner Option Goes Live, by Benjamin Wittes:

..... (comments on WP story) ...

If this comes about, it will be a significant vindication for a much-derided idea that Jack and I and Eric Posner-particularly Jack-have been advancing for some time. Way back in 2005, Jack and Eric wrote this oped in the Post, which begins:

Everyone involved in the contentious negotiations between the White House and Congress over the proper form for military commissions seems to agree on at least one thing: that al-Qaeda and Taliban terrorists ought to be prosecuted. We think this assumption is wrong: Terrorist trials are both unnecessary and unwise.

The oped concludes:

Congress and the president are wasting political energy designing a trial system that will satisfy few and convict even fewer. They should instead focus on improving the military detention process, a tool that has the sanction of law and custom and that has proved itself more than adequate for wartime needs.

More recently, Jack and I wrote this piece, arguing specifically against the consensus that the administration needed to bring KSM to trial:

The Obama administration and its critics are locked in a standoff over whether to try Khalid Sheikh Mohammed and the other alleged Sept. 11 conspirators in a military commission or in federal court. Both sides are busily ignoring the obvious solution: Don’t bother trying them at all.

Mohammed has already spent more than seven years in military detention. Both the Obama administration and the Republicans who object to trying him in federal court accept the legitimacy of such detention as a traditional incident of war for those in the command structure of al-Qaeda, and perhaps for associated forces as well. In general outline, so do the courts. Given these facts, the politically draining fight about civilian vs. military trials is not worth the costs. It also distracts from more important questions in the legal war against terrorism.

And only a few weeks ago, Jack reiterated the point in an oped in the New York Times:

THE Obama administration wants to show that federal courts can handle trials of Guantánamo Bay detainees, and had therefore placed high hopes in the prosecution of Ahmed Khalfan Ghailani, accused in the 1998 bombings of American embassies in East Africa. On Wednesday a federal judge, Lewis Kaplan of the United States District Court in Manhattan, made the government’s case much harder when he excluded the testimony of the government’s central witness because the government learned about the witness through interrogating Mr. Ghailani at a secret overseas prison run by the C.I.A.

Some, mostly liberals and civil libertarians, applauded the ruling, saying it showed that the rule of law is being restored. But many conservatives denounced it as proof that high-level terrorists cannot reliably be prosecuted in civilian courts and should instead be tried by military commissions.

The real lesson of the ruling, however, is that prosecution in either criminal court or a tribunal is the wrong approach. The administration should instead embrace what has been the main mechanism for terrorist incapacitation since 9/11: military detention without charge or trial.

Currently, three separate legal arenas are in play, where the results will be determinative as to whether AQ and associated groups will be treated primarily under the Laws of War (kill or detain), or primarily under the Rule of Law (capture and trial):

1. KSM and similar prosecutions, whether civilian court or military commission;

2. Al-Awlaki and other direct action cases;

3. Gitmo detention cases, where the DC Circuit is developing the indefinite detention doctrine under the 2001 AUMF informed by the Laws of War (LOAC).

The early idealistic hopes of some in the Obama administration have clearly been dashed by harsh realities.

Regards

Mike

[jmm99]

From Lawfare, Ghailani Convicted on One Count, Acquitted on All Others, Wednesday, November 17, 2010, focusing on the statute which could bring him from 20 years to life:

Ghailani was convicted of violating 18 USC 844(f)(3) and (n). Section 844(f) provides:

(1) Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other personal or real property in whole or in part owned or possessed by, or leased to, the United States, or any department or agency thereof, or any institution or organization receiving Federal financial assistance, shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both.

(2) Whoever engages in conduct prohibited by this subsection, and as a result of such conduct, directly or proximately causes personal injury or creates a substantial risk of injury to any person, including any public safety officer performing duties, shall be imprisoned for not less than 7 years and not more than 40 years, fined under this title, or both.

(3) Whoever engages in conduct prohibited by this subsection, and as a result of such conduct directly or proximately causes the death of any person, including any public safety officer performing duties, shall be subject to the death penalty, or imprisoned for not less than 20 years or for life, fined under this title, or both.

Section 844(n) then applies conspiracy liability to this provision, but takes the death penalty off the table:

Except as otherwise provided in this section, a person who conspires to commit any offense defined in this chapter shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense the commission of which was the object of the conspiracy.

I expect this result (since there were 280+ Not Guilty verdicts on the other counts) will put paid to future civilian criminal prosecutions of Gitmo detainees.

Regards

Mike

[AdamG]

Just to provide a Hellerian Catch-22 to the post above :

(Context : military flight returning from Afghanistan)

The TSA personnel at the airport seriously considered making us unload all of the baggage from the SECURE cargo hold to have it reinspected. Keep in mind, this cargo had been unpacked, inspected piece by piece by U.S. Customs officials, resealed and had bomb-sniffing dogs give it a one-hour run through. After two hours of sitting in this holding area, the TSA decided not to reinspect our Cargo–just to inspect us again: Soldiers on the way home from war, who had already been inspected, reinspected and kept in a SECURE holding area for 2 hours. Ok, whatever. So we lined up to go through security AGAIN.

This is probably another good time to remind you all that all of us were carrying actual assault rifles, and some of us were also carrying pistols.

So we’re in line, going through one at a time. One of our Soldiers had his Gerber multi-tool. TSA confiscated it. Kind of ridiculous, but it gets better. A few minutes later, a guy empties his pockets and has a pair of nail clippers. Nail clippers. TSA informs the Soldier that they’re going to confiscate his nail clippers.

http://www.redstate.com/erick/2010/1...r-tsa-outrage/