Crimes, War Crimes and the War on Terror

[jmm99]

quite a tour. I expect more of this, not only by released detainees so far named, but by others - e.g., Mohamed Farag Bashmilah.

Another former Gitmo guard, making the US media circuit, is Brandon Neely, whose statement is here. Neely is presently active in the Houston chapter of Iraq Veterans Against the War.[*]

The journalist who has followed the Gitmo cases most closely (many articles and a book) - from the detainees' viewpoint - is UK resident Andy Worthington, who lives in London.

I expect this cottage industry to grow - exponentially if Sen. Leahy's proposed Truth & Reconciliation Commission flies.

------------------------
[*] Ex-guard Arendt is also connected with IVAW, and testified last year at the Winter Soldier Hearings. The latter is also a road show - in Austin TX on 28 Feb. IVAW is an affiliate of Veterans for Peace, whose board is bio'd here.

Another affiliate is VVAW (Vietnam Veterans Against the War), which is a splinter from a splinter of the original VVAW of the late 60s and early 70s. Barry Romo, who spoke at 2008 Winter Solder, is probably its best known member from his role in 1971 Winter Soldier.

None of these groups should be confused with VVA (Vietnam Veterans of America), which is congressionally chartered under Title 36, USC - VVA webpage.

[jmm99]

Originally, al-Marri was charged by John Ashcroft under Federal criminal law. Pres. Bush overruled him; the charges were dismissed and al-Marri was detained under the President's executive order. The Obama administration may reverse course and attempt to restore the criminal prosecution as Lyle Denniston reports here.

Court trial for Al-Marri?
Thursday, February 26th, 2009 2:25 pm | Lyle Denniston
....
The American Civil Liberties Union, citing news stories, reported Thursday that the Justice Department will shortly file terrorism charges and hold a trial in civilian court of a Qatari national, Ali Saleh Kahlah Al-Marri — the only detainee taken prisoner in the U.S. and still being held in this country. ...
..... [a summary of the al-Marri proceedings follow] ....

The ACLU news release is here. The Washington Post story is here.

If the indictment is filed, the SCOTUS appeal, not far off from being decided, will probably be moot and dismissed (based on recent decisions). There may be problems in prosecuting in Federal court because of the prior dismissal of the original Federal charges (mentioned in prior posts); although the original charges (credit card fraud and making false statements to the FBI) are different from the new charges (providing material support to al-Qaeda).

[jmm99]

The DoJ, via the Federal attorney for the central district of Illinois, has filed a two count indictment against al-Marri.

U.S. charges Al-Marri, seeks end of Court case
Friday, February 27th, 2009 1:39 pm | Lyle Denniston
.....
A federal grand jury in Peoria, Ill., has charged a Qatari national held in the U.S. on terrorism crimes, and the Justice Department said Friday it will ask the Supreme Court to dismiss the prisoner’s pending appeal, now set for a hearing April 27.
.....
The Department said the Solicitor General’s office would move, probably later Friday, to have Al-Marri’s petition dismissed in the wake of the indictment. But Jonathan Hafetz, Al-Marri’s lead lawyer, said: “Despite this indictment, the Obama administration has yet to renounce the government’s asserted authority to imprison legal residents and U.S. citizens without charge or gtrial. We will continue to pursue Mr. Al-Marri’s case before the Supreme Court to make sure that no American citizen or lawful resident will ever again be subjected to such treatment.”

The indictment is here; the DoJ press release is here; and the ACLU press release is here.

The indictment is a bare notice pleading charging al-Marri with providing “material support” and "resources", specifically “personnel” (which could include himself) to AQ, and with conspiracy to provide such support

This case will now take two different paths:

1a. SCOTUS will have to decide whether the case should continue. Normally, these facts would render the case moot and it would be dismissed. Since the case presents the issue of whether habeas corpus can be suspended for a non-citizen, but legal US resident, the Court may decide to hear that issue; or,

1b. Even if habeas is not suspended, can a non-citizen resident or even a citizen be detained (even if not charged with a crime) under Common Article 3 of the GCs as an unlawful enemy combatant ? Note that Common Article 3 was originally aimed at covering domestic insurgencies, and does not distinguish whether the insurgent is a citizen, legal alien resident or illegal alien resident of the nation involved in the armed conflict.

2. Al-Marri will have to plead to the indictment; but, since it is a bare notice pleading, the defense will most likely request a bill of particulars; and will certainly engage in some pre-trial discovery. One defense may be that the acts to be proven against al-Marri now were the same acts underlying the initial credit card fraud charge (dismissed with prejudice). If the acts now charged are different, that defense would not be available.

[davidbfpo]

More speculation on Binyam Mohammed's allegations of torture will force an investigation in the UK: http://news.bbc.co.uk/1/hi/uk/7917543.stm

davidbfpo

[jmm99]

from your BBC link
Lord Carlile told the Sunday Times that a judicial inquiry was needed to look into the claims made Mr Mohamed.

What would a UK judicial inquiry look like ?

For example, in Michigan procedure, we have what is called a one-man grand jury (a judge). He can authorize police investigations, subpeona witnesses, order searches and production of documents, etc. He then can issue indictments if criminal conduct is found. Those one-man grand jury proceedings are secret (like the common law grand jury), until indictments are issued.

[jmm99]

at this DoJ webpage.

Seven memoes (msotly dealing with detention issues) from 2001-2002 are now available after their release by AG Holder:

Memorandum Regarding Constitutionality of Amending Foreign Intelligence Surveillance Act to Change the "Purpose" Standard for Searches (09-25-2001)

Memorandum Regarding Authority for Use of Military Force to Combat Terrorist Activities within the United States (10-23-2001)

Memorandum Regarding Authority of the President to Suspend Certain Provisions of the ABM Treaty (11-15-2001)

Memorandum Regarding the President's Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations (03-13-2002)

Memorandum Regarding Swift Justice Authorization Act (04-08-2002)

Memorandum Regarding Determination of Enemy Belligerency and Military Detention (06-08-2002)

Memorandum Regarding Applicability of 18 U.S.C. § 4001(a) to Military Detention of United States Citizens (06-27-2002)

Note that two later memoes in 2008 and 2009 (also available at the above link) "refine" the previous memoes in part:

Memorandum Regarding Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2001 (01-15-2009)

Memorandum Regarding October 23, 2001 OLC Opinion Addressing the Domestic Use of Military Force to Combat Terrorist Activities (10-06-2008)

Since the last two memoes represent the final position of the Bush administration - and reflect its practices after 2002, the earlier memoes must be taken with a grain of salt. That is, they are not evidence of what was actually done, or even planned; but do reflect the legal opinions of their authors at the time.

[jmm99]

No surprise here in a short article and short order.

Al-Marri detention case ended
Friday, March 6th, 2009 12:13 pm | Lyle Denniston
...
The Supreme Court on Friday wiped out a lower court ruling that gave the President the authority to detain indefinitely as terrorism suspects individuals living legally in the United States. The order also approved transfer of Ali Saleh Kahlah Al-Marri from military custody to civilian custody for a trial on criminal charges in a regular federal court, presumably in Illinois. ...
....
The Court’s action ended the Qatari national’s appeal in Al-Marri v. Spagone (08-368) that the Court had agreed to hear. Thus, the hearing set for April 27 will not be held.

This result leaves for another day settlement of the issue: Can a non-citizen resident or even a citizen be detained (even if not charged with a crime) under Common Article 3 of the GCs as an unlawful enemy combatant ?

Common Article 3 was originally aimed at covering domestic insurgencies, and does not distinguish between whether the insurgent is a citizen, legal alien resident or illegal alien resident of the nation involved in the armed conflict.

The clearest voice on this issue, as applied to citizens, has been Justice Scalia, who said "NO" - either release or charge criminally. He took no position as to legal alien residents. Justice Jackson, in the post-WWII Johnson case, suggested that the same habeas rules apply to citizens and legal alien residents; but that non-resident aliens (Germans) could be detained in an American prison located in Germany. The Johnson case is very much on point re: the Bagram detainees.