Crimes, War Crimes and the War on Terror

[jmm99]

I start this off by saying that this is a Canadian issue to be decided by Canadians - not by a USian whose last Canadian resident was his maternal grandfather.

So, my comment is limited. I read the Globe article and all of the Globe's archived articles. As in the BM case, we have a lot of statements and very little evidence (much of the evidence seems to be classified - or at least has not been disclosed).

Therefore, I have no opinion as to whether AA was what we (US) would consider an "unlawful enemy combatant", or whether he went afoul of some "terrorist" law. Judging from the relatively few habeas cases decided after merits hearings, that is a logical position to take (Judge Leon's cases, admittedly dealing with lower level people, have broken roughly 50-50).

If this were a US case (if AA were a US citizen sitting in a US embassy), it would indeed be a lulu. I imagine it would commence as a habeas proceeding in DC District Court - and would also include a count seeking his removal from the "no-fly" list. That aspect of the "War on Terror" is about due for some judicial review.

AA is an interesting case. I would love to know the complete evidence (or lack thereof). Keep us abreast, Rex. Thank you for the link.

[jmm99]

I'll start this with Lyle's analysis of the new standard, which goes into far more detail than in the excerpt below:

U.S. defines its claim to detention power
Friday, March 13th, 2009 3:04 pm | Lyle Denniston
....
The Obama Administration disclosed on Friday that it will no longer claim the power to detain terrorism suspects under the label “enemy combatant,” even while claiming broad authority to detain those who are a part of terrorist networks or who supplied “substantial support” to such forces. The authority, it said, extends to places other than battlefields if [in] Afghanistan, but did not say where else detainees might be seized.

The document cast[s] aside a claim by the former Bush Administration that the President has detention power solely because of his role as Commander-in-Chief.

It told a federal judge that it is “refining” its claim of detention authority, relying on Congress’ resolution passed after the 9/11 terrorist attacks and on “principles of the laws of war.” It proposed a new definition of that authority, for use as Guantanamo Bay prisoners’ habeas challenges moved forward in federal civilian courts. But it said it may alter its detention policies after a wide-ranging, inter-agency review is completed in about six months.

From the congressional resolution, as “informed by” laws-of-war principles, the Justice Department defined detention authority as aimed at individuals who “substantially supported” terrorist groups or other armed groups, as well as those it directly linked to Al Qaeda and Taliban networks. ....

While everyone (hopefully) is reading Lyle's analysis (and the cited links), I will go about slogging through the links.

Three thoughts came to mind when Fox briefly flashed the definition (confirmed by Lyle's article):

“The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any peson who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.”

1. The term "person" has a much broader meaning than the term "combatant" (as that term is normally defined under the Laws of War as we know them).

2. The word "substantial" ("material" would be a virtual cognate legally) is what we call a "litigation word" - that is, its limits are a mixed question of fact and law in the particular case.

3. The definition is population-centric (persons, which would to me include infrastructure and auxilliary persons, as well as including, but not limited to, "any peson who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces") - as opposed to threat-centric (enemy combatants).[*]

More later.

--------------
[*] See, BW, I do read your screeds.

[jmm99]

AG Holder filed a personal declaration along with the DoJ filing (to be discussed later), which outlined the Obama administration's process re: detention.

The most informative comment to me was on page 1, para 4 (sorry, the .pdf file doesn't allow cut and paste) regarding the general treatment of "individuals" in connection with "armed conflicts" and "counter-terrorism operations". It is no stretch to suggest that this generalized concept could be easily extended to the term VNSA (Violent Non-State Actor), as discussed in another thread.

------------------------------
The DoJ press release has as its bottom line:

In its filing today, the government bases its authority to hold detainees at Guantanamo on the Authorization for the Use of Military Force, which Congress passed in September 2001, and which authorized the use of force against nations, organizations, or persons the president determines planned, authorized, committed, or aided the September 11 attacks, or harbored such organizations or persons. The government’s new standard relies on the international laws of war to inform the scope of the president’s authority under this statute, and makes clear that the government does not claim authority to hold persons based on insignificant or insubstantial support of al Qaeda or the Taliban.

In short, if I happen to give ten bucks to a front charity, where the money ends up in AQ's hands, I am not subject to detention. If I hand a $10 grenade to an AQ soldier, that should be a different story - the context will turn out to be the deciding factor.

----------------------------
The press release by the Center for Constitutional Rights, an advocacy group that represents a number of detainees, has a negative view of the new standard:

Obama Administration Offers Essentially Same Definition of Enemy Combatant Without Using the Term

CCR Says New Filings Misinterpret Laws of War and Only Serve to Continue to Hold People Indefinitely

March 13, 2009, New York - In response to this afternoon’s government filing in multiple Guantánamo cases, the Center for Constitutional Rights issued the following statement:

While the new government has abandoned the term “Enemy Combatant,” it appears on first reading that whatever they call those they claim the right to detain, they have adopted almost the same standard the Bush administration used to detain people without charge - with one change, the addition of the word “substantially” before the word “supported.” This is really a case of old wine in new bottles.

Whether in interpreting the laws of war or the AUMF, the government continues to confuse the right to use military force with the right to detain terror suspects indefinitely. It is still unlawful to hold people indefinitely without charge. The men who have been held for more than seven years by our government must be charged or released.

I would non-respectfully suggest that the CCR is confusing what arises under the Laws of War (detention, specifically under Common Article 3 of the GCs) with the Rule of Law (criminal charges under domestic law). That will be the issue - and I believe the lines of engagement are now quite clear.

-----------------------------
The ACLU press release is equally negative:

Justice Department Adheres To Key Elements Of Bush Administration Detention Policy

FOR IMMEDIATE RELEASE
March 13, 2009

CONTACT: James Freedland, (646) 785-1894 or (212) 549-2666; media@aclu.org

NEW YORK – In a court filing today, the Obama administration argued that detention of prisoners held at Guantánamo is justified even if the individual is captured far from any battlefield and has not directly participated in hostilities. According to the definition offered in the government's brief, individuals who provide "substantial" support to al-Qaeda or the Taliban can be detained.

The following can be attributed to Anthony D. Romero, Executive Director of the American Civil Liberties Union:

"It is deeply troubling that the Justice Department continues to use an overly broad interpretation of the laws of war that would permit military detention of individuals who were picked up far from an actual battlefield or who didn't engage in hostilities against the United States. Once again, the Obama administration has taken a half-step in the right direction. The Justice Department's filing leaves the door open to modifying the government's position; it is critical that the administration promptly narrow the category for individuals who can be held in military detention so that the U.S. truly comports with the laws of war and rejects the unlawful detention power of the past eight years."

Same comment for this as for CCR. When the new standard sinks into the consciousness of the far-left Obama base, they will go ballistic. The regular left of that base, and its center-right, will say "OK". (we'll see how good my crystal ball is).

Caveat: An unresolved SCOTUS issue (most clearly defined by Justice Scalia) is whether a US citizen (or lawful resident alien) can be detained under the Laws of War (assuming that person is a person meeting the new standard); or must be released unless criminal charges are filed. That issue has been avoided by the Bush II and Obama administrations - and by SCOTUS, most recently in the al-Marri case.

[George L. Singleton]

...was doing during his two term administrations in dealing with the war on terrorism and terrorists.

Be interested in how you see what we do now with released Gitmo terrorist Taliban who is now commander of all Taliban terrorist operations for Kandahar Province in Afghanistan.

When I was a little boy, long ago, pre-TV days, we went on our bikes to Saturday afternoon, often double feature, Western black and white movies. A key statement often heard was "the only good 'Injun is a dead Injun..."

Today's politically correct folk are upset already at my use of historic fact wording, but it's sentiments exist among many who want to win in today's loose as a goose guerilla warfare in Afghanistan.

[jmm99]

In my not so humble opinion, this is one good brief (13 pages). While, in the future, I reserve the right to savage the Obama DoJ writings, I do love these 13 pages.

Here are some excerpts (pagination in .pdf):

p.2

Through this submission, the Government is refining its position with respect to its authority to detain those persons who are now being held at Guantanamo Bay. The United States bases its detention authority as to such persons on the Authorization for the Use of Military Force (“AUMF”), Pub. L. 107-40, 115 Stat. 224 (2001). The detention authority conferred by the AUMF is necessarily informed by principles of the laws of war. Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004) (plurality). The laws of war include a series of prohibitions and obligations, which have developed over time and have periodically been codified in treaties such as the Geneva Conventions or become customary international law. See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 603-04 (2006).

The laws of war have evolved primarily in the context of international armed conflicts between the armed forces of nation states. This body of law, however, is less well-codified with respect to our current, novel type of armed conflict against armed groups such as al-Qaida and the Taliban. Principles derived from law-of-war rules governing international armed conflicts, therefore, must inform the interpretation of the detention authority Congress has authorized for the current armed conflict. Accordingly, under the AUMF, the President has authority to detain persons who he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for the September 11 attacks. The President also has the authority under the AUMF to detain in this armed conflict those persons whose relationship to al-Qaida or the Taliban would, in appropriately analogous circumstances in a traditional international armed conflict, render them detainable.

Besides its legal citations being accurate, two things are to be noted: (1) I Law is less developed in the VNSA context, but law exists; and (2) the focus is on persons (more fully developed below into groups of persons) - not on nation-states or formally-recognized armed forces.

After stating the definition (quoted in my first post tonite), the brief goes on to suggest a case by case evaluation - context and evidence:

(p.3)

There are cases where application of the terms of the AUMF and analogous principles from the law of war will be straightforward. It is neither possible nor advisable, however, to attempt to identify, in the abstract, the precise nature and degree of “substantial support,” or the precise characteristics of “associated forces,” that are or would be sufficient to bring persons and organizations within the foregoing framework. Although the concept of “substantial support,” for example, does not justify the detention at Guantanamo Bay of those who provide unwitting or insignificant support to the organizations identified in the AUMF, and the Government is not asserting that it can detain anyone at Guantanamo on such grounds, the particular facts and circumstances justifying detention will vary from case to case, and may require the identification and analysis of various analogues from traditional international armed conflicts. Accordingly, the contours of the “substantial support” and “associated forces” bases of detention will need to be further developed in their application to concrete facts in individual cases.

These general points established, the brief goes on to "persons" who are part of AQ, Taliban or associated groups, with its key points (after I Law justification for use of armed force):

(pp.6-8)

The United States has not historically limited the use of military force to conflicts with nation-states:

[A] number of prior authorizations of force have been directed at non-state actors, such as slave traders, pirates, and Indian tribes. In addition, during the Mexican-American War, the Civil War, and the Spanish-American War, U.S. military forces engaged military opponents who had no formal connection to the state enemy. Presidents also have used force against non-state actors outside of authorized conflicts.

Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047, 2066-67 (2005) (citing U.S. use of military force in the Chinese Boxer Rebellion, against the Mexican rebel leader Pancho Villa, and in the 1998 cruise missile attacks against al-Qaida targets in Sudan and Afghanistan).

Thus, consistent with U.S. historical practice, and international law, the AUMF authorizes the use of necessary and appropriate military force against members of an opposing armed force, whether that armed force is the force of a state or the irregular forces of an armed group like al-Qaida. Because the use of force includes the power of detention, Hamdi, 542 U.S. at 518, the United States has the authority to detain those who were part of al-Qaida and Taliban forces. Indeed, long-standing U.S. jurisprudence, as well as law-of-war principles, recognize that members of enemy forces can be detained even if “they have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations.” Ex parte Quirin, 317 U.S. at 38; Khalid v. Bush, 355 F. Supp. 2d 311, 320 (D.D.C. 2005), rev’d on other grounds sub nom., Boumediene v. Bush, 128 S. Ct. 2229 (2008); see also Geneva Convention (III) Relative to the Treatment of Prisoners of War of Aug. 12, 1949, art. 4, 6 U.S.T.S. 3316 (contemplating detention of members of state armed forces and militias without making a distinction as to whether they have engaged in combat). Accordingly, under the AUMF as informed by law-of-war principles, it is enough that an individual was part of al-Qaida or Taliban forces, the principal organizations that fall within the AUMF’s authorization of force.

Moreover, because the armed groups that the President is authorized to detain under the AUMF neither abide by the laws of war nor issue membership cards or uniforms, any determination of whether an individual is part of these forces may depend on a formal or functional analysis of the individual’s role. Evidence relevant to a determination that an individual joined with or became part of al-Qaida or Taliban forces might range from formal membership, such as through an oath of loyalty, to more functional evidence, such as training with al-Qaida (as reflected in some cases by staying at al-Qaida or Taliban safehouses that are regularly used to house militant recruits) or taking positions with enemy forces. In each case, given the nature of the irregular forces, and the practice of their participants or members to try to conceal their affiliations, judgments about the detainability of a particular individual will necessarily turn on the totality of the circumstances.

The brief goes on here to include associated groups, and infrastructure supporters, whether in a "battleground nation" or not - again relying on I Law and Laws of War principles (pp. 8-9). I also like "totality of circumstances" standards.

- continued in next post .....

[jmm99]

The brief then turns to my beloved Common Article 3 - and takes on the 1977 Protocols and turns them in favor of detention:

(pp.10-11)

For example, Common Article 3 of the Geneva Conventions provides standards for the treatment of, among others, those persons who are part of armed forces in non-international armed conflict and have been rendered hors de combat by detention. Third Geneva Convention, art. 3. Those provisions pre-suppose that states engaged in such conflicts can detain those who are part of armed groups. Likewise, Additional Protocol II to the Geneva Conventions expressly applies to “dissident armed forces” and “other organized armed groups” participating in certain non-international armed conflicts, distinguishing those forces from the civilian population. Additional Protocol II, art. 1(1), 13.

Moreover, the Commentary to Additional Protocol II draws a clear distinction between individuals who belong to armed forces or armed groups (who may be attacked and, a fortiori, captured at any time) and civilians (who are immune from direct attack except when directly participating in hostilities). That Commentary provides that “[t]hose who belong to armed forces or armed groups may be attacked at any time.” See ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 Aug. 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (Additional Protocol II), ¶ 4789 ... Accordingly, neither the Geneva Conventions nor the Additional Protocols suggest that the “necessary and appropriate” force authorized under the AUMF is limited to al-Qaida leadership or individuals captured directly participating in hostilities, as some petitioners have suggested.

Finally, for these reasons, it is of no moment that someone who was part of an enemy armed group when war commenced may have tried to flee the battle or conceal himself as a civilian in places like Pakistan. Attempting to hide amongst civilians endangers the civilians and violates the law of war. Cf. ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I), ¶ 1944, (Link) (“Further it may be noted that members of armed forces feigning civilian non-combatant status are guilty of perfidy.”). Such conduct cannot be used as a weapon to avoid detention. A different rule would ignore the United States’ experience in this conflict, in which Taliban and al-Qaida forces have melted into the civilian population and then regrouped to relaunch vicious attacks against U.S. forces, the Afghan government, and the civilian population.

Good job, guys and gals: I will castigate when you move off the "Straight Path".

In justice to the arguments made by the Bush DoJ (of which I have been critical at times), they were limited by the administation's fixation on Unilateral Executive Power (e.g., John Yoo) and on State-Supported Terrorism (which resulted in some concessions that nearly amounted to recognition of the Taliban as a nation-state). Added to what seemed to be a fear of the GCs and I Law, the resulting arguments often did not hold together.

The use of "unlawful enemy combatant" was not necessarily fatal (as Judge Leon illustrated in several cases - applying his view of the law, however). The movement to a population-centric concept (persons, groups of persons) allows a much broader detention scope than under the Bush definition.

In fact, the excessive emphasis on "enemy combatant" allowed the defense to bring in a number of GC III, Article 4 arguments in the Hamdan trial. That may have led to a lesser verdict (did, according to the expert witness for Hamdan) - see this thread.

[jmm99]

from George
Be interested in how you see what we do now with released Gitmo terrorist Taliban who is now commander of all Taliban terrorist operations for Kandahar Province in Afghanistan.

we kill him.

From DoJ memo (full quotes above):

Moreover, the Commentary to Additional Protocol II draws a clear distinction between individuals who belong to armed forces or armed groups (who may be attacked and, a fortiori, captured at any time) and civilians (who are immune from direct attack except when directly participating in hostilities).

Time to revise our "self-defense" ROEs to get with the Laws of War ?

Or, if he surenders again, accept the same and detain until the armed conflict with his group is terminated.

[davidbfpo]

Two documents from the European Union Commission on the reaction to releases from G-Bay; skim read only and couched in bureaucratic and diplomatic prose:

http://www.statewatch.org/news/2009/...ct-7038-09.pdf

http://www.statewatch.org/news/2009/...38-add1-09.pdf

davidbfpo

[jmm99]

The Times says the EU is hedging about accepting detainees:

Europe’s Hedging on Inmates Clouds Guantánamo Plans
By WILLIAM GLABERSON and STEVEN ERLANGER
Published: March 15, 2009

European countries that have offered to help the Obama administration close the detention center at Guantánamo Bay, Cuba, have begun raising questions about the security risks and requirements if they accept prisoners described by the Bush administration as “the worst of the worst,” according to diplomats and other officials. .....

At present, a certain amount of hedging seems prudent - not only in Europe, but here, since the plans of the Obama administration are not yet developed. When the administration took office, there were high hopes among a segment of its base that the Gitmo detainees would be released, the camp would be closed and everyone could forget about detainees. Then, realities set in.

The same NY Times article has a database of former and present Gitmo detainees, which is here.

For example, the database has 15 pages of records for Abdullah Gulam Rasoul, the Taliban officer in sheep's clothes who is presently plying his trade in Astan. Those are for the CSRT and 1st 2 Admin Reviews. The 3rd AR, which released him, is still classified.

[davidbfpo]

The BBC cites an International Red Cross report, based on G-Bay interviews, which somehow has appeared in public after being given to the USA: http://news.bbc.co.uk/1/hi/world/americas/7945783.stm

davidbfpo

[jmm99]

1. The first news item, here from the WP, is that Ali Saleh Kahlah al-Marri was denied bond and bound over for transfer to Peoria IL, the venue for his eventual trial as an AQ member or supporter.

Continued Detention of Marri Is Ordered
By Carrie Johnson
Washington Post Staff Writer
Thursday, March 19, 2009; A02

A federal magistrate ordered alleged sleeper agent Ali Saleh Kahlah al-Marri detained on conspiracy and terrorism charges yesterday, setting the stage for a trial that could explore al-Qaeda's plans after the devastating terrorist strikes in the United States more than seven years ago.

At a proceeding in Charleston, S.C., Justice Department counterterrorism prosecutor Michael J. Mullaney urged court officials to declare Marri a flight risk and a danger to the community. Authorities say Marri arrived in the United States on Sept. 10, 2001, under false pretenses and "under the command and control of al-Qaeda."

Defense attorney Andrew J. Savage III implored the judge to release Marri, who spent 5 1/2 years in a U.S. naval brig before being indicted by a grand jury late last month. To make his case, Savage called several witnesses, including his own wife, to testify about Marri's character and his religious devotion.

Judge Robert Carr disagreed, reasoning that Marri's lawyers had not met a high legal bar. His order clears the way for Marri's transfer to Peoria, Ill., where he is scheduled to appear in court Monday for arraignment. ....

Why not a habeas proceeding to test al-Marri's continued detention ? Simple. Habeas does not lie where a criminal defendant is held pursuant to the Federal Rules of Criminal Procedure - which by definition provide due process.

--------------------------------
2. My prediction was that the left base of Pres. Obama's support would be unhappy with his administration's position on AQ-Taliban detainees, as expressed in the DoJ memo to the DC District judges. Glenn Greenwald, at Salon, has helped my crystal ball's average:

Glenn Greenwald
Sunday March 15, 2009 17:01 EDT
Obama's "enemy combatant" policy: following a familiar pattern
(updated below)
.....
Consider three key episodes from the last week just standing alone. On Friday, the Obama administration announced that it would no longer use the Bush-identified label "enemy combatants" as a ground for detaining Terrorist suspects, an announcement that generated headlines suggesting a significant change from the prior administration. But the following day, after reviewing the legal brief the administration filed (.pdf) setting forth its actual position regarding presidential powers of detention, here is how The New York Times's William Glaberson accurately described what was really done:

"The Obama administration said Friday that it would abandon the Bush administration’s term “enemy combatant” as it argues in court for the continued detention of prisoners at Guantánamo Bay, Cuba, in a move that seemed intended to symbolically separate the new administration from Bush detention policies.

"But in a much anticipated court filing, the Justice Department argued that the president has the authority to detain terrorism suspects there without criminal charges, much as the Bush administration had asserted. It provided a broad definition of those who can be held, which was not significantly different from the one used by the Bush administration."

Bush's asserted power to detain as "enemy combatants" even those people who were detained outside of a traditional "battlefield" -- rather than charge them with crimes -- was one of the most controversial of the last eight years. Yet the Obama administration, when called upon to state their position, makes only the most cosmetic and inconsequential changes -- designed to generate headlines misleadingly depicting a significant reversal ("Obama drops 'enemy combatant' label") -- while, in fact, retaining the crux of Bush's extremist detention theory. ....

In fact, the Obama DoJ definition, read literally, goes beyond the Bush definition. Obama DoJ: a "person" who is a part of AQ, etc. vs. the Bush DoJ: an "enemy combatant" who is a part of AQ, etc. Focus on a "person" (rather than an "arms bearer") would more easily allow inclusion of infrastructure, auxiliary supporters, etc.

I was expecting a blast from the UK by Andy Worthington; and he has obliged.

Guantánamo: The Nobodies Formerly Known As Enemy Combatants
16.3.09
....
The Obama administration has clearly learned a trick or two from its predecessors. In its response to a court request for clarification of the meaning of the term “enemy combatant,” for use in the Guantánamo prisoners’ habeas corpus reviews (which were triggered by a momentous Supreme Court decision last June), the new government has responded to the challenge with a cunning sleight of hand. In a press release, the Department of Justice announced that it had dropped the use of the term “enemy combatant,” and that it had adjusted its definition of those who can be detained so that, instead of holding people who were “part of, or supporting, Taliban or al-Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners,” individuals who supported al-Qaeda or the Taliban “are detainable only if the support was substantial.”

As benign-sounding propaganda, in contrast to the Bush administration’s arrogant version, which almost always manifested a tangible disdain for Congress and the judiciary, this announcement has the alluring veneer of the “change” that Barack Obama promised throughout his election campaign, but in practical terms nothing has actually changed. The prisoners are now nobodies, with no label whatsoever to define their peculiar extra-legal existence, and the entire rationale for holding them without charge or trial — and the egregious errors made along the way — remain unaddressed. ...

Andy does realize that the position of the Obama DoJ is more diabolical (to Andy's eyes) than the Bush position - see rest of article.

BTW: Andy has done a lot of work on Gitmo - lists of detainees, news, his comments, etc. His viewpoint differs quite a bit from mine - perhaps, we would find more agreement concerning historical Stonehenge.

--------------------------
Moving a bit away from Stonehenge and Sarum to London, the UK flap re: Binyam Mohamed continues, as reported by Reuters.

REUTERS
Reuters North American News Service
Mar 18, 2009 13:00 EST
* British to publish spy interrogation guidelines
* PM resists calls for public inquiry into rendition
* Critics say latest moves are not enough
By Luke Baker

LONDON, March 18 (Reuters) - Britain agreed on Wednesday to publish for the first time the guidance it gives intelligence agents when questioning suspects held overseas, following a series of torture allegations. ....

And, here at BBC, is an interesting civil case by a UK detainee.

Page last updated at 14:57 GMT, Wednesday, 18 March 2009
£60,000 awarded to terror suspect

The Metropolitan Police have agreed to pay £60,000 damages to a man arrested during an anti-terror raid.

The High Court heard that Babar Ahmad was subjected to "serious gratuitous prolonged unjustified violence" and "religious abuse" after his arrest.

Mr Ahmad, a 34-year-old IT support analyst, was never charged following the dawn raid at his home in Tooting, south west London, in December 2003.

He is now in jail awaiting extradition to the US on separate charges.
......
BARBAR AHMAD: TIMELINE

Dec 2003: Arrested under anti-terror laws and released without charge
Jul 2004: Assault claims passed to Crown Prosecution Service
Aug 2004: Arrested under anti-terror laws
Oct 2004: Charged with terror crimes by US court
May 2005: British judge rules he can be extradited to US
Jul 2006: Challenges extradition
Nov 2006: Loses extradition challenge
Feb 2007: Abuse claims rejected by IPCC
Mar 2009: Sues Met Police for assault
.....

[jmm99]

The ICRC report on interrogations (prior post by David) is more extensively discussed in an on-line NY Review of Books article.

Volume 56, Number 6 · April 9, 2009
US Torture: Voices from the Black Sites
By Mark Danner
ICRC Report on the Treatment of Fourteen "High Value Detainees" in CIA Custody by the International Committee of the Red Cross 43 pp., February 2007 ....
....
It is a document for its time, literally "impossible to put down," from its opening page—

Contents
Introduction
1. Main Elements of the CIA Detention Program
1.1 Arrest and Transfer
1.2 Continuous Solitary Confinement and Incommunicado Detention
1.3 Other Methods of Ill-treatment
1.3.1 Suffocation by water
1.3.2 Prolonged Stress Standing
1.3.3 Beatings by use of a collar
1.3.4 Beating and kicking
1.3.5 Confinement in a box
1.3.6 Prolonged nudity
1.3.7 Sleep deprivation and use of loud music
1.3.8 Exposure to cold temperature/cold water
1.3.9 Prolonged use of handcuffs and shackles
1.3.10 Threats
1.3.11 Forced shaving
1.3.12 Deprivation/restricted provision of solid food
1.4 Further elements of the detention regime....

—to its stark and unmistakable conclusion:

The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture. In addition, many other elements of the ill-treatment, either singly or in combination, constituted cruel, inhuman or degrading treatment.

I would treat this with some caution; but many others won't.

[jmm99]

in two areas. The first challenge by lawyers for a number of detainees goes to the heart of the detainment question - can persons be detained at all unless criminal charges are filed against them, or unless they are detained solely as PW/POWs under GC III ?

Obama challenged anew on detention
Saturday, March 21st, 2009 6:21 am | Lyle Denniston
....
Conceding that the Obama Administration has made “a partial retreat” from Bush Administration claims of power to detain indefinitely individuals rounded up in the “war on terrorism,” lawyers for a group of detainees argued on Friday that the new government is still asserting too much authority. The President, they contended, is engaging in “impermissible law-making” by the Executive Branch, intruding on Congress’s powers.

President Obama’s new claim, outlined a week earlier by the Justice Department, remains ”a marked departure from and expansion of the military detention authority recognized by the traditional law of war,” just as that of the Bush Administration was, according to the new filing Friday in U.S. District Court.....
.....
The new leaders of the Justice Department contended that, while no longer asserting “inherent” presidential power to detain without charges, the President has authority under the resolution Congress enacted after the Sept. 11, 2001, terrorist attacks.

The detainee's filing (in response to the DoJ memo extensively covered in posts above) is here.

------------------------------
The second challenge goes to the end game of the habeas process - that is, what remedies can a court order when it has found that a detainee should no longer be detained. Primarily, this is an Uighur issue.

New pressure in Uighurs’ cases
Saturday, March 21st, 2009 5:31 am | Lyle Denniston
....
Seeking to put new judicial pressure on the Obama Administration to end the detention of Chinese Muslim (Uighur) detainees at Guantanamo Bay, lawyers on Friday asked a federal appeals court to hold Defense Secretary Robert M. Gates in contempt for doing nothing to free those prisoners — in one case, for nine months.

If Gates does not obey earlier court orders to take action, the two motions filed in D.C. Circuit Court argued, he should be brought into court promptly to go over possible punishment — including, as one suggestion, a fine of up to $500,000 a day until he obeys.

The two detainee filings are here and here.

[walrus]

A respectful reply to Schmedlap's question:

I don't understand why non-US citizens who were taken prisoner on a battlefield, during armed conflict, and held prisoner outside of our borders, should have protections in the US Constitution bestowed upon them. Rather than addressing this question, we are subjected to accusations of torture, mistreatment, and denial of due process (again, without clarifying whether the detainees are owed any due process).

I think it is easier for people from outside the United States to answer this question for you because we are far enough away to see the wood from the trees as it were.

I draw your attention to the first sentence of the Second paragraph of The Declaration Of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness

The short answer to your question is that one of those unequivocal, unalienable rights is due process.

Now it was The Declaration of Independence that skewered the U.S.S.R. Most foreigners who can read will have read it at some point. We admire it. There is no equivocation, no "some are more equal than others". So to see America pussy footing around that statement of belief, around about rendition, "enemy combatants", what constitutes torture and access to the legal system or some other form of due process was, and is, very unsettling to foreigners.

It's not in America's best interests because it suggests to foreigners that if America is so quick to discard one of its core beliefs so easily, then it's other principles and especially any treaties or agreements it might seek to make with the rest of the world are similarly labile. This is not a good position from which to negotiate as we may all find out in the next few weeks when the G20 meets to sort out the financial crisis and discuss America's lending requirements.

This cannot simply be fobbed off as a "PR disaster". America actions in making these deliberate choices has given licence to every despot in the world to do exactly the same thing (and no doubt much worse) under the mantra of "fighting terrorism". Americas decision to treat "Enemy Combatants" this way is thus a human rights disaster for oppressed people everywhere.

The question remains as to why America jettisoned its entire human rights reputation at a stroke, who engineered it, and what if anything America gained from doing it, apart from alienating large segments of the Muslim world.

[Schmedlap]

The short answer to your question is that one of those unequivocal, unalienable rights is due process.

No. Due Process is not an unalienable right. It is a procedural safeguard - a legal construct.

It's not in America's best interests because it suggests to foreigners that if America is so quick to discard one of its core beliefs so easily, then it's other principles and especially any treaties or agreements it might seek to make with the rest of the world are similarly labile.

I think that you've got a good point, if you're talking about the public relations impact of the perception that we torture people. We did a horrible job of not getting out in front of that issue. But, to be fair, many in our own country were more concerned with scoring political points against the President than in being rational and considering the impacts of their demonizations and mischaracterizations upon the non-US audience.

The question remains as to why America jettisoned its entire human rights reputation at a stroke, who engineered it, and what if anything America gained from doing it, apart from alienating large segments of the Muslim world.

The answer is that it's a bogus question. Our gov't waterboarded 3 people about 7 years ago in response to fears of a possible ticking timebomb scenario, held detainees captured on the field of battle without a trial, and some Soldiers acting in a criminally negligent manner mistreated Iraqi prisoners, documented it, and were put on trial and convicted. In its zeal to hammer away at the Bush administration, the media turned Abu Ghraib into the most successful propaganda windfall of the post-9/11 era.

We are not without sin. But we're also not the bogeymen that we were portrayed to be by the party and ideology that were not in power from 2002 to 2008. The propaganda windfall for our adversaries would not have been so dramatic had we not supplied them with the material, echoed a similar narrative, and blown the story far out of proportion and given it more credibility, when it deserved none.

[jmm99]

on this thread. Don't let me interrupt - I'm more than willing to watch from the sidelines.

[jmm99]

Yesterday, Judge Walton held a 2-hour hearing on the DoJ's new definitions for AQ-Taliban detainees, and the detainees' responses to the same. Lyle Denniston has provided a good summary of the key points made by the judge and by counsel.

First test of Obama detention doctrine
Monday, March 23rd, 2009 11:07 pm | Lyle Denniston

Analysis

The Obama Administration’s newly crafted claim of government power to detain terrorism suspects underwent its first courtroom test on Monday, and appeared likely to get at least qualified endorsement by at least one judge. A two-hour hearing in U.S. District Court focused mainly on what Congress meant nearly eight years ago in its first response to the 9/11 terrorist attacks, and on what the Supreme Court meant in 2004 in its first ruling in a modern detention case (Hamdi v. Rumsfeld).

Despite a sharply worded attack by two lawyers for detainees, U.S. District Judge Reggie B. Walton displayed skepticsm that the Administration’s doctrine went as far as the lawyers’ criticism had suggested. He told one attorney that the position being taken by detainees’ counsel would “put our nation at risk; you want the United States to fight Al-Qaeda with its hands tied behind its back.” ....

Unfortunately, I have no link to the complete 2-hour transcript.

Bios for Judge Reggie B. Walton are here and here.

[davidbfpo]

The UK government has now decided, after an investigation by the law Officers (similar to US Attorney-General), that a police investigation is required on the allegations made of MI5 collusion in Binyam Mohammed's torture: http://www.telegraph.co.uk/news/news...legations.html

The BBC has some reactions: http://news.bbc.co.uk/1/hi/uk/7966177.stm

These allegations are now going to get awfully messy IMHO; others have commented on the level of knowledge of MI5 management, not the officer present. (MI5 is the slang term for the UK Security Servivce).

davidbfpo

[jmm99]

given the plate which was presented by BM's release. That plate is that his offenses (if any) remain unresolved - and that the focus was shifted to the allegations of his renditions and interrogations.

I have stated before that BM ought to have been tried by the US: (1) for war crimes, "terrorist acts", etc. - if any there were; or (2) if there were no crimes, whether he was an enemy combatant (old definition) or a person who was a member or substantial supporter of AQ-Taliban-associated groups (new definition), subject to detention in the first place.

I can only infer that US political decisions were made to avoid trial because of the hot potato of his renditions and interrogations. Those decisions (in which both the Bush II and Obama administrations share responsibility) have resulted in a situation where BM's status before he was rendered and interrogated cannot be resolved - and will become submerged in the new allegations and presumably future investigative findings.

In short, BM will be presented as an "innocent victim", or at most as one who had "misbehaved" (in the words of the shadow minister). Naughty boy.

[jmm99]

I confess to having known of the Aafia Siddiqui case just after it was filed, but it slipped through the cracks of my floorboards.

Anyway, here is the initial NY Times article re: the charges.

Pakistani Suspected of Qaeda Ties Is Held
Published: August 5, 2008

WASHINGTON — An American-trained Pakistani neuroscientist with ties to operatives of Al Qaeda has been charged with trying to kill American soldiers and F.B.I. agents in a police station in Afghanistan last month, the Justice Department said Monday night.

The scientist, Aafia Siddiqui, who studied at Brandeis University and the Massachusetts Institute of Technology, was transferred to New York on Monday, and is to be arraigned Tuesday in the United States District Court for the Southern District of New York, the department said in a statement.

Ms. Siddiqui, 36, disappeared with her three children while visiting her parents’ home in Karachi, Pakistan, in March 2003, leading human rights groups and her family to believe she had been secretly detained. But in interviews Monday and in a criminal complaint made public later Monday, American officials said they had no knowledge of Ms. Siddiqui’s location for the past five years until July 17, when Ms. Siddiqui and a teenage boy were detained in Ghazni, Afghanistan, after local authorities became suspicious of their loitering outside the provincial governor’s compound. ...

Had to be one embarrassed WO that day.

Now, it seems (at least in DoJ's view) that Ms Siddiqui is not nuts, but faking.

March 26, 2009, 11:18 am
Terror Suspect Faked Mental Illness, Prosecutors Say
By Benjamin Weiser

A federal prosecutor in Manhattan said Thursday that two government psychiatrists had concluded that a Pakistani neuroscientist charged with trying to kill American soldiers and F.B.I. agents in Afghanistan had been faking her symptoms of mental illness.

An earlier court-ordered psychological evaluation had concluded that the neuroscientist, Aafia Siddiqui, 37, was unfit for trial as a result of a mental disease, “which renders her unable to understand the nature and consequences of the proceedings against her or to assist properly in her defense,” a court document shows.

Then last month, prosecutors said two new evaluations by government-retained psychiatrists had found differently, that she was not suffering from mental illness. But the prosecutors had not previously said the doctors concluded she was faking.

On Thursday, an assistant United States attorney, David Raskin, told a judge in Federal District Court that the psychiatrists, each working independently and unaware of the other’s findings, concluded that the symptoms that had been seen “were attributed to malingering.”

“It was manipulation by the defendant,” Mr. Raskin told Judge Richard M. Berman, “as opposed to any signs of serious mental illness.” .....

We shall see whether "gaming the system" is in play.