Crimes, War Crimes and the War on Terror

[Tacitus]

The question is why are we bothering with holding trials (perhaps instead of summary execution) for people we just know are guilty of something.

Q: What do the following men all have in common?
Martin Bormann, Karl Donitz, Hans Frank, Wilhelm Frick, Hans Fritzsche, Walther Funk, Hermann Goring, Rudolph Hess, Alfred Jodl, Ernst Kaltenbrunner, Gustav Krupp von Bohlen und Halbach, Robert Ley, Baron Konstantin von Neurath, Franz von Papen, Erich Raeder, Joachim von Ribbentrop, Alfred Rosenberg, Fritz Sauckel, Dr. Hjalmar Schacht, Baldur von Schirach, Arthur Seyss-Inquart, Albert Speer, and Julius Streicher.

A: They were all accused of various war crimes and given trials at Nuremburg.

Not in some kangaroo court in an offshore Cuban penal colony, either. Evidence was presented, and they were given the opportunity to defend themselves against charges. It is because we are Americans. We have a suspicion against arbitrary arrests and imprisonment by either George III (or some possible home grown despot), dating back to the American Revolution.

Interestingly, von Papen and Schacht were acquitted.

I believe most people think that if you are holding somebody as a war criminal or terrorist kingpin, we have some kind of obligation to bring evidence in something like a fair public trial environment. Federal Court or some kind of Nuremberg style military tribunal will do. As it is, the perception is that we are running some kind of Star Chamber.

If we’re dealing with some guy who just happened to be in a Taliban militia, this all seems a bit overkill. What is the problem with just treating him as a POW or turning him over to the Afghan government, anyway, instead of trying to reinvent the legal wheel?

[J Wolfsberger]

From the Third Geneva Convention:

"Part I. General Provisions

"Art.4 Prisoners of War ...

"(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:[ (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war."

and

"Art. 5. The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

"Illegal combatant" and "unlawful combatant" don't appear in the conventions. What people are trying to get at with the terms is whether an individual is protected by the conventions. The US has, in fact, provided "the protection of the present Convention" to the detainees at Gitmo. The term "kangaroo court" is a dishonest slur on the US attempt to, in fact, bring the detainees before a tribunal to determine their status, in accordance with Art. 5. of the Third Geneva Convention.

[wm]

The term "kangaroo court" is a dishonest slur on the US attempt to, in fact, bring the detainees before a tribunal to determine their status, in accordance with Art. 5. of the Third Geneva Convention.

If this last is in reference to my use of the phrase 'kangaroo court' in a previous post, please note that I put the phrase in double quotes, which is a fairly common convention for identifying that the wording is being applied in a non-standard way. Double quotes are used to indicate that such an attribution of the noun phrase is a degenerative case, not a standard use for the phrase. I do not view the Gitmo Tribunal as a kangaroo court. I was suggesting that part of the US motivation for holding trials might be very pragmatic--to try to prevent other entities from holding kangaroo court proceedings with US citizens as "defendants." (Please again note the use of the double quotes--a person being charged by a kangaroo court is hardly one to whom the appelation 'defendant' is appropriately applied.)

BTW, I concur with Rex's 4 reasons for abiding by and supporting IHL. I just happen to arrange them in a different priority order. I'd rank the 4 reasons in order of importance as 4, 2, 1, 3 (and 2 is actually a subcategory of 4--it is an example of keeping a promise, which is just another right thing to do.)

BTW, I follow a linguistic convention in the philosophy of logic and language with my use of single quotes. They are being used as a way of differentiating between using a word or phrase as an operative part of a sentence and mentioning that word or phrase--that is, using the words as a name for the word or phrase found inside the single quotes. For example, snow refers to the white stuff on the ground; 'snow' refers to the name we use for the white stuff on the ground.

[Ken White]

As you say, "snow refers to the white stuff on the ground;" or "snow" as you say is the white stuff on the ground while that white stuff that appears on the ground in winter is usually snow.

Yet 'snow' refers to the name we use for the white stuff on the ground while the white stuff on the ground is apparently snow but 'snow' also refers to other white stuff that can put one on the ground.

I'm snowed, I think I'll go get a drink...

[CloseDanger]

Art. 5. The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

"Noncombatants" fall not under convention period. Neigh Constitutional, nor Geneve.

Ergo, their status is determined by the same laws that govern their adversary, Which under profound wisdom established The Uniformed Code Of Military Justice as an equal act of Justice on both our and their "Soldiers".

In the case of GTMO, it is a military tribunal. The prisoners do not consign to anything whatsoever. No code at all. They are merely Men without a religion, nation, country, or funding entity worth a damn.

To show the world that it is okay to officially recognize this kind of fraud (these prisoners) WOULD be criminal.

Your most profound argument before Justice is that you walked a straight line by what is legally, morally, and Godly true. And easily verifiable as well.

[jmm99]

The battle between the government and the detainees has two fronts - the DC Circuit on DTA cases and the DC District on habeas cases. However, it is resolving itself into one issue - the collision between classified data and application of the Brady discovery doctrine.

Since the government has conceded that it cannot meet the discovery timetable it set, it has had to go to a fallback position.

U.S. seeks to escalate detainee delay dispute
Monday, September 15th, 2008 8:11 pm Lyle Denniston
.....
Seeking to head off court-imposed punishment for failing to meet deadlines for filings in Guantanamo Bay detainee cases, the Justice Department on Monday sought to raise the stakes, foreseeing two potential threats to national security if it is sanctioned. ...
....
The core of this new dispute is the simple one of meeting deadlines — in fact, deadlines that the government sought, over detainees’ objections that they were too generous. The government has conceded it has not been able to meet them, and it is seeking relaxation of them until it can try to catch up.

But it has become increasingly apparent that the underlying controversy is over classified information — how much of it there is, who gets to see it, what process should be used to prepare it for court review, what effect will it have on continued detention of prisoners.

http://www.scotusblog.com/wp/us-seek...delay-dispute/

The government's reply in the District Court, seeking relief from the present scheduling order, is here.

http://www.scotusblog.com/wp/wp-cont...ay-9-15-08.pdf

The reply first contains the concession; notes the need to prepare new factual returns; and then eventually reaches its bottom line:

(reply, pp. 2, 3, 11)
....
As explained in connection with its Motion for Relief, the Government underestimated the time it would take to accomplish the development and finalization of amended and original factual returns in the pending habeas cases. When it could not meet the benchmark it had initially represented to the Court as attainable, it requested relief from the Court in the form of an additional 30 days to complete the filing of the first 50 returns.....
....
... Petitioners have wrongfully interpreted the Governments’ desire to present the strongest possible case for detention as an admission that the Government now finds the records of the Combatant Status Review Tribunal (“CSRT”) “inadequate” to justify detention. See, e.g., Pet. Opp. at 9 n. 7. The Government’s development of new factual returns, however, recognizes that significant legal changes have occurred since the original CSRTs were done and the original returns were filed, and it admits of the possibility of factual changes regarding the cases against detainees. ...
....
.... Petitioners seek to prevent the Court from considering late-filed amended returns and to allow the Government only seven days to file original returns on pain of default or evidentiary sanctions.7 Imposing such sanctions because the Government was overly optimistic in its estimates of how long it would take to ramp up production of returns would not force Respondents alone to pay the price. It would force the American people to shoulder the burden, either in the form of increased risk of the erroneous release of individuals whom the government has determined are enemies of the United States, or in the form of reckless and inappropriate dissemination of classified information without careful review and vetting by the intelligence agencies charged with protecting American interests....

Most (all) readers in this forum will be concerned about the danger of "inappropriate dissemination of classified information". In assessing that risk, one should go back to Judge Hogan's protective order (cited in post # 86 above), and read the whole thing. Then, draw your own conclusions as to whether the court's order will be adequate to the task.

My broken crystal ball suggests that the DC District judges will probably cut the government some slack on the timing of discovery, but will not be that impressed by the classified data arguement on its merits.

------------------------------
On the DC Circuit front, we have a slightly different government approach.

from SCOTUSblog source above
....
Meanwhile, the Justice Department made a new effort in D.C. Circuit Court to shut down at least temporarily that Court’s part in reviewing government detention decisions.....
....
... the Department said in its newest filing that the Circuit Court should put some 190 such detainee cases on hold until after District Court judges resolve the prisoners’ habeas claims. At a minimum, it said, no action should be taken on the motion to compel until after the Circuit Court has decided whether to put the detainee cases aside.

The government's reply filed in the DC Circuit is here.

http://www.scotusblog.com/wp/wp-cont...el-9-15-08.pdf

There, we have this interesting bit of advocacy:

(response pp.4-5)
...
As the Government’s abeyance motions explain, holding the DTA cases, such as these, in abeyance is appropriate given the pendency and rapid movement of the habeas litigation. The two types of cases are duplicative. And the Supreme Court in Boumediene directed that habeas move forward "prompt[ly]," while at the same time holding the DTA proceedings to be a constitutionally inadequate substitute for habeas corpus. Boumediene, 128 S. Ct. at 2275. Thus, Judge Hogan has entered an order requiring expedited briefing on case procedures and the production of at least 50 factual returns every month with respect to cases he is coordinating. Scheduling Order, In re Guantanamo Bay Litig., Misc. No. 08-442 (D.D.C. July 11, 2008). Moreover, the Government has additional obligations in the cases pending before Judges Leon and Sullivan. Indeed, Judge Leon recently issued an order scheduling the first merits hearing in a case before him for October 6, 2008. See Scheduling Order, Boumediene ~. Bush, Civ. Case No. 04-1166 (D.D.C. Aug. 27, 2008).

So, while the government is moving in DC District to delay its proceedings, it is moving in DC Circuit to stay its proceedings because the DC District is moving ahead so quickly.

In the government's defense (fair is fair), the response does specify the efforts being undertaken here:

(response pp. 5-6)
...
The preparation of factual returns in the habeas cases is an enormous undertaldng. As the Government recently explained to the district court, the Department of Defense has approximately 30 attorneys working exclusively on the habeas litigation (with more to be deployed), and has diverted intelligence personnel to work full-time in support of the habeas litigation. See Respondent’s Motion for Partial and Temporary Relief from the Court’s July 11,2008 Scheduling Order, In Re Guantanamo Bay Litigation, No. 08-442 (filed Aug. 29, 2008), at 4. The Department of Justice has assigned or detailed more than 50 attorneys to producing factual returns and litigating the more than 250 habeas cases, and the CIA presently has more than 50 attorneys, paralegals, subject matter experts, and classification officials involved in the process of reviewing classified factual returns - a necessary step to their submission in the habeas litigation. ... The Government’s resources are finite, and they will not permit it to litigate 190 DTA cases and more than 200 fast-track habeas cases at the same time at the rate ordered by the district courts.

So, a question to those in law enforcement. If your prosecutor's office had roughly 130 attorneys, could it handle some 400 cases (recall these are basically unlawful firearms and explosives cases) on an expedited basis ?

----------------------------------------
I am also aware of the litigation game - known as "graymail" - where the threatened use of classified data, sources and methods, is a tool to force an advantageous settlement or dismissal of charges.

Here is a recent example (not a "War Crimes Case"), where the government is claiming the defendant is doing exactly that. The defendant, on the other hand, claimed the government had improperly influenced the grand jury - that claim was rejected by the judge.

News - Channel 8
Ex-CIA Exec Facing Trial Says He'll Expose Agents, Programs
posted 8:58 pm Tue September 09, 2008
McLean, Va.
....
A former top CIA official accused of corruption and fraud is threatening to expose the identities of numerous agents and programs as part of his defense, prosecutors said. ... In a court filing, prosecutors allege that former CIA executive director Kyle "Dusty" Foggo is trying to gum up the works of his trial, scheduled for November, by delving into classified information that is irrelevant to his case.

http://www.news8.net:80/news/stories/0908/552040.html

Many of the filings in the Foggo case have been sealed because of references to classified data. Federal judges do know how to protect classified data.

[jmm99]

trying to figure out what the DoJ's game plan is.

Yesterday, it seemed to be (based on its responsive briefs) to stay the DC Circuit cases (under DTA); and to obtain more time to file amended reports in the DC District habeas cases (which include both DTA and MCA cases). That was then ... this is now (as of 22:33 tonite).

Early test of detention reasons
Tuesday, September 16th, 2008 10:33 pm Lyle Denniston
.....
The Justice Department, in seeking to bolster its claims to continue holding scores of detainees at Guantanamo Bay, has been filing a stack of new reports in court to update its reasons. In fact, it has said it plans to file amended reports in nearly all of the 250 habeas cases now in District Court. ...

http://www.scotusblog.com/wp/early-t...ntion-reasons/

The immediate action is again before Judge Leon, where five detainees are challenging a large submission of amended reports

(same source as above)
....
The attorneys sought to bring on that test by asking U.S. District Judge Richard J. Leon, who has about two dozen detainees’ cases in his Court and is moving them rapidly, to strike from court records the massive filing the government made about five Algerians in the case titled Boumediene v. Bush ....
.....
At issue are both the classified and unclassified versions of a 53-page “narrative” of information, plus 134 attached exhibits. The classified version was filed August 22, and a heavily redacted public version was filed Sept. 5. ...

The detainee's main argument is that no government official has signed the documents under oath verifying the truth and reliability of the information. The detainee's motion is here.

http://www.scotusblog.com/wp/wp-cont...ct-9-16-08.pdf

The motion's main thrust is:

(motion pp.1, 3, 4)
....
This Court ordered the Government to submit any material it wished to add to its previously filed “return” – i.e., its explanation why the Petitioners were being imprisoned – on or before August 22. Briefing and Scheduling Order, Boumediene v. Bush, No. 04-1166, Dkt. No. 125 (RJL) (D.D.C. July 31, 2008). The Court also ruled that the Government bears the burden of proof to show that Petitioners’ imprisonment is lawful. Case Management Order, Boumediene v. Bush, No. 04-1166, Dkt. No. 142 (RJL) (D.D.C. Aug. 27, 2008).
.....
Although the facts alleged by the Government in support of continued imprisonment are contained in the Narrative, no officer of this Court has attested that the alleged facts are true or have a good-faith basis in fact. The Narrative – the Government’s summation of the reasons why the Petitioners have been and continue to be imprisoned – is unsigned. No one from the Government has put his or her name to the allegations – not the Government’s counsel from the Department of Justice (who signed the cover memo, but not the rest), nor Rear Admiral Thomas, who cautiously declares under penalty of perjury only that the Narrative contains “information” that the Department of Defense used to “establish” and “substantiate [Petitioners’] detention.” Thomas Decl. ¶ 3. Admiral Thomas does not declare under penalty of perjury that the “facts” alleged within the Narrative are, to the best of his knowledge, information, and belief, all true.

Nobody does....
....
Surely someone at the Department of Justice is willing to do that, if these allegations are to be given the weight and credibility that the Government contends are sufficient to justify indefinite military detention. Failure of an officer of the Court to sign the Narrative certainly reinforces Petitioners’ arguments regarding the insufficiency and vagueness of the Government’s allegations.

Therefore, Petitioners respectfully request that the Court order the Government to file a signed Narrative, or a signed certification from counsel of record attesting to the veracity of the unsigned Narrative. If Government counsel will not sign, Petitioners request that the Court strike the Narrative and its accompanying exhibits. [going on to cite various cases striking unsigned pleadings under FRCP Rule 11 and 28 U.S.C. § 2243, the Habeas Act] ...

A large amount of classified information is contained in the government's exhibits (most everything). That data cannot be independently checked for accuracy. Thus, besides the statute and rule, the argument is plausible that someone should stick out his or her neck to sign and swear that, "to the best of his (her) knowledge, information and belief", all factual allegations are true. We shall see what Judge Leon does with this one.

[jmm99]

As predicted (in post #88), the government has a added 30 days (from 31 Aug - so really about a week from the order date) to complete presentation of its first 50 submissions - with 50 more to be filed each month thereafter.

No punishment for U.S. delay on detainees
Friday, September 19th, 2008 7:15 pm Lyle Denniston
.....
The federal judge overseeing some 200 detainees’ cases on Friday gave the government added time to supply its reasons for holding the prisoners and refused to impose any punishment for delays up to now, but warned that his patience may be growing thin. ...
..... The first 50 such returns are now due by Sept. 30, a month later, and 50 more will be due each month until all have been filed. ...

http://www.scotusblog.com/wp/no-puni...-on-detainees/

The order is here

http://www.scotusblog.com/wp/wp-cont...er-9-19-08.pdf

The opinion explaining the order is here.

http://www.scotusblog.com/wp/wp-cont...in-9-19-08.pdf

The order adds this interesting option for the government - transfer or release of detainees:

(order, p.2)
The Court further ORDERS that, pending further order of the Court, the government need not file factual returns or motions to amend factual returns at this time for petitioners approved for transfer or release from the United States Naval Base at Guantanamo Bay, Cuba.

The opinion makes it clear that the schedule is now a mandate:

(opinion, pp.5-6)
As it is disappointed in the government’s failure to meet the schedule the Court adopted based in part on the government’s assurances, the Court grants the government’s motion reluctantly. ... But the Court admonishes the government that, in allowing it an additional thirty days to file each set of factual returns in these cases, the Court is not merely setting a “goal” for which the government is to “strive,” ... Rather, the Court is ordering the government to produce at least fifty factual returns by month’s end, followed by at least fifty more each month thereafter until production is complete. Nor is the government’s “doubt that Petitioners’ counsel can respond, and the Court can adjudicate, cases at that pace,” Gov’t Reply 4, a basis on which the government can rely to disobey an order of this Court.

While the Court is not unsympathetic to the government’s current workload and that, since Boumediene was decided a little over three months ago, government “[a]ttorneys and others from multiple agencies have worked long and hard, nights and weekends,” see Gov’t Mot. 10-11, 10 n.3, the government has detained many of these petitioners for more than six years, and the time has come to provide them with the opportunity to fully test the legality of such detention in a prompt, meaningful manner. .....
.....
Review of the public and ex parte declarations assures the Court that the government is now on notice of the time needed “to accomplish the development and finalization of amended and original factual returns in the pending habeas cases,” Gov’t Reply 2. Going forward under the revised schedule resulting from the Court’s granting of its motion, consequently, the government cannot claim as a basis for failing to meet deadlines imposed by this Court that it “simply did not appreciate the full extent of the challenges posed,” Gov’t Mot. 3. Except for good cause shown, therefore, the Court will not tolerate any further delay. ....

Meanwhile, in Judge Leon's court, the first habeas evidentiary hearing is scheduled to begin in 2 weeks. The government has not yet convinced him to extend his timetable.

(same SCOTUSblog above)
The Justice Department has made a similar request for more time to file returns in the two dozen cases being handled by a different District judge, Judge Richard J. Leon. That judge had several times told Justice Department lawyers that, if the process was slowed down, he would summon government officials to his courtroom to explain in person.

Judge Leon has yet to rule on the sufficiency of the evidence already submitted - that is, whether it can be unsworn or whether a jurat will be required.

[jmm99]

There are three cases pending, which have been discussed in prior posts; but which do not involve the DTA and MCA cases involving Gitmo detainees. This is a brief update on them.

--------------------------------------
The Arar and Rasul cases involve claims of civil liability for alleged torture, etc. While the issues are somewhat different in each case, they boil down to which (if any) government officials can be sued in tort for the alleged offenses - none of these cases has been tried.

Ashcroft et al. off the civil liability hook (post # 46)

Arar v. Ashcroft
....
Synopsis
Arar v. Ashcroft is a federal lawsuit challenging the rendition of a Canadian citizen to Syria, by the U.S. government, where he was tortured, forced to falsely confess, and released after one year without ever being charged.
.....
Status
On December 9, 2008, oral argument will be heard by the Second Circuit Court of Appeals en banc.

http://www.ccrjustice.org/ourcases/c...ar-v.-ashcroft

Torture as a Federal Tort Claim ? (post # 65)

Rasul v. Rumsfeld
....
Synopsis
Rasul v. Rumsfeld is a lawsuit against former Secretary of Defense Donald Rumsfeld on behalf of four former detainees seeking damages for their arbitrary detention and torture while detained at Guantánamo.
.....
Status
On January 11, 2008, the Court of Appeals for the D.C. Circuit dismissed the case. The court affirmed the district court's dismissal of the constitutional and international law claims, and reversed the district court's decision that the Religious Freedom Restoration Act (RFRA) applied to Guantanamo detainees, dismissing those claims as well. On August 22, 2008, the plaintiffs filed a petition for certiorari before the U.S. Supreme Court.

http://www.ccrjustice.org/ourcases/c...ul-v.-rumsfeld

--------------------------------------------
Hamdan & al-Marri Updates (post # 48)

Al-Marri v. Pucciarelli
....
President’s domestic detention power tested
Friday, September 19th, 2008 1:30 pm Lyle Denniston
.....
Lawyers for the only detainee seized in the U.S. under presidential order and still in military captivity urged the Supreme Court on Friday to rule that no federal law and no part of the Constitution allows the President to order such detentions.

http://www.scotusblog.com/wp/preside...-power-tested/

This is a re-play of the Civil War case of Ex Parte Milligan, 71 U.S. 2 (1866); except that Al-Marri is a documented alien rather than a US citizen. The outcome will very likely hinge on the legal distinction between the theatre of operations (worldwide, assuming a GWOT), and a theatre of active hostilities (where US courts are not open for business) - and on whether SCOTUS will draw a distinction between US citizens (Milligan) and documented aliens.

-------------------------------------------
Since the issues in these cases are quite distinct from the issues in the Gitmo "War Crimes" cases, I will start new threads for them when I have the time.