Crimes, War Crimes and the War on Terror

[davidbfpo]

A report in the UK Daily Telegraph, without citing sources - assumed in another article in The Guardian to be the Security Service (MI5) and Secret Intelligence Service (MI6), so probably "spin" or leaking: http://www.telegraph.co.uk/news/news...new-cases.html

Contains interesting figures on how many prisoners were interviewed by the UK whilst held by the USA.

I don't recall other released prisoners, e.g. the "Tipton Taliban" alleging torture and Mozzam Begg in public attests to hearing torture, but IIRC not that he was tortured.

davidbfpo

[jmm99]

that more allegations of unlawful renditions, interrogations and torture will surface, if this excerpt from the Telegraph is accurate:

It is understood that MI5 and MI6 conducted more than 100 interviews in Afghanistan, more than 100 at Guantanamo Bay and more than 2,000 in Iraq.

That there are but 15 detainees alleged to be in this category, suggests the scope of the potential problem - relatively small as compared to the number of detainees interviewed.

But, allegations do not rise to the standard of evidence. Given the allegations, the UK's investigation into them is logical. So, also a judicial inquiry if the evidence adduced by the investigation provides probable cause to believe that crimes were committed under UK laws.

A cautionary note to those following this: What may be a crime under UK laws, may not be crime under US laws - and vice versa. The "Law" is not a brooding omnipresence in the sky (as the Eminent Jurists seem to think). It varies from nation to nation and is a manifestation of their sovereignty.

So also, the interpretation of basic principles; and the implementation of that interpretation.

[davidbfpo]

In this article the former Conservative spokesman on security mattersm David Davis, comments and opens up the issues involved: http://www.guardian.co.uk/commentisf...ed-david-davis

He is always forthright.

davidbfpo

[jmm99]

Please take a look at this thread, post #32.

[jmm99]

Geoffrey S. Corn, LTC (ret.) has published a number of studies dealing with the interfaces between the Laws of War, the Rule of Law and the applicable ROEs (status-based and conduct-based).

Two which are most applicable to this thread and recent (2006 & 2008) are:

"Hamdan, Lebanon, and the Regulation of Armed Hostilities: The Need to Recognize a Hybrid Category of Armed Conflict" (download from this link)

"Untying the Gordian Knott: A Proposal for Determining Applicability of the Laws of War to the War on Terror" (paper here)

LTC Corn also joined in an amici brief, dealing with the issue of combatant immunity if claimed by civilians - in that case, military contractors; but more generally also applicable to any group of armed civilians.

There are two CLAMO studies specifically dealing with "Legal Lessons Learned From Afghanistan and Iraq" - volume 1 and volume 2.

More generally, we have the "Rule of Law Handbook 2008" from JAG Legal Center, which ties into a number of other manuals (e.g., the Operational Law Handbook 2007 & 2008.

The total of all files linked above are 64 MB.

LTC Corn and I end up about in the same places, although approaching the issues from differing vantage points. One way or the other, one has to find a solution that will fit into the attached interface diagram (credits: Corn). Both of us realize it has to end in appropriate ROEs, which cannot be imposed as a matter of law.

[jmm99]

Some of the evidence (good, bad or indifferent) against Gitmo detainees has come from informers in their midst. Now, one of them (Yasin Muhammed Basardh) has been ordered released via a habeas hearing that was totally classified and sealed:

Detainee informer wins release
Posted by Lyle Denniston on March 31, 2009.

Acting on the basis of secret documents and a closed-door hearing, a federal judge on Wednesday ruled that a Yemeni detainee at Guantanamo Bay — identified in news accounts as the government’s “star witness” against other detainees — is legally entitled to be released from captivity. In a one-page order, found here, U.S. District Judge Ellen Segal Huvelle granted the habeas plea of Yasin Muhammed Basardh, 33.

Early in February, in the most complete news story so far about Basardh as an informer, the Washington Post quoted him as saying during an earlier military hearing: “I am cooperative to the point where my cooperation with everyone has led many people threatening my life…I have put my life in danger and therefore I cannot go back to my own country…They will not hesitate to kill me or anyone in my family.”
....
Judge Huvelle held a closed-door hearing Tuesday in Basardh’s case with lawyers for both sides, and afterward issued her release order. Basardh’s lawyers had filed a motion for a ruling on his plea for release, and the government had responded, but the judge noted that those documents remained classified. She also gave no public reasons for her action, saying only that she had done so during the “sealed” hearing.

Her order directed government officials to “take all necessary and appropriate diplomatilc steps to facilitate the release of petitioner Basardh forthwith.” This is the first time Judge Huvelle has ordered a Guantanamo prisoner to be released. Presumably, Basardh will remain at Guantanamo until the U.S. government finds a place to resettle him.

The Washington Post article (which provides a lot of detail for a classified case) concludes:

The U.S. government will probably not grant Basardah and other informers asylum. That leaves two options for the U.S. government: find a third country to accept them or, more likely, send them home under protective arrangements, according to outside experts and former government officials. One former informer, a friend of Basardah's, has been sent back to his home, Iraq.

Would a witness protection program work for Gitmo informers ? - serious question.

Judge Huvelle's official bio and Wiki.

[Ron Humphrey]

Would a witness protection program work for Gitmo informers ? - serious question.

Hard to see how it could. At least not in the context that most of us would perceive how something like that is supposed to work. If you think about how often those who have been placed in protection even here with all that we do.

1- end up doing some of the same stuff they did before
2-find themselves running into old aquaintances

Long and short even if you got a country to agree to take them whats the real expectation that they won't be either gone in a short time or disappear only to show up somewhere else you don't want them.

The main concern being based on the manpower you'll waste looking for them because whether they disappear for their own safety or to go do something bad you'll have to search for them either way.

If they aren't placed somewhere you have control of seems like it would be one heck of a die roll.

[jmm99]

thanks for the input. What about settling them (the informers) in the US under tight controls ?

The point being that informers are needed and will continue to be needed. If we cannot guarantee their safety (and that of their families), will that dry up the "informer pool" ?

I am no expert on witness protection programs - thus, the question.

[jmm99]

Today, DC District Judge John D. Bates issued a short order in 4 Bagram detainee cases; and a much longer (53 page) opinion, granting 3 of them the right to proceed with their habeas cases, and requiring supplemental briefing on a 4th.

Starting first with Judge Bates' bio and wiki, we find he was a Bush II (Dec 2001) appointee. From 1968 to 1971, he served in the United States Army, including a tour in Vietnam. He went on to law school graduating in 1976.

He served as Deputy Independent Counsel for the Whitewater investigation from 1995 to mid-1997. In February 2006, he was appointed by Chief Justice Roberts to serve as a judge of the United States Foreign Intelligence Surveillance Court. He has decided a number of high-profile cases (e.g., dismissal of the Plame civil action; but also several cases for & against the Bush II administration).

Judge Bates is a center-right jurist with substantial credentials.

Here is a snip from Lyle's analysis:

Major extension of Boumediene
Thursday, April 2nd, 2009 6:13 pm | Lyle Denniston
....
In one of the most significant sequels to the Supreme Court’s ruling last June on the rights of terrorism suspects held by the U.S. military, a federal judge decided Thursday that the ruling protects the rights of at least some of the detainees the U.S. is holding at Bagram air base outside of Kabul, Afghanistan.
....
The ruling, though, applied to only three of the Bagram detainees. (There reportedly are more than 600 there now; the judge said his ruling would affect “only a limited” group at Bagram, but did not give a specific number.) The judge cited as a key fact for each of those three that they were all captured outside Afghanistan and then transferred to Bagram “for detention now exceeding six years.” None of those three is an Afghan citizen. For a fourth, who is an Afghan citizen, the judge said that could be ”enough to tip the balance” against his claim for habeas relief.

“Although it may seem odd that different conclusions can be reached for different detainees at Bagram,” the judge wrote in a 53-page opinion, it was his view that this “is the predictable outcome” of the formula, to be used detainee-by-detainee, that the Supreme Court mandated in its ruling last June in Boumediene v. Bush. ....

So far tonite, the punditry (whether left or right) on this decision has been universally wrong on what the opinion holds and its consequences.

Its consequences will be that 3 Bagram detainees will receive a limited habeas hearing to determine if they were "enemy combatants" before they were captured - that to be decided by a preponderence of the evidence (50 yds and a nose). A 4th detainee may or may not receive a hearing. The decision releases no one.

The essence of Judge Bates' ruling is found in his perception of the present state of habeas law, as determined by a majority (split opinions) of SCOTUS in Boumediene (2008)

(opinion, p.15)
Boumediene concluded that "at least three factors are relevant in determining the reach of the Suspension Clause":

(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner's entitlement to the writ.
128 S. Ct. at 2259.

For the sake of analysis, these three factors can be subdivided further into six: (1) the citizenship of the detainee; (2) the status of the detainee; (3) the adequacy of the process through which the status determination was made; (4) the nature of the site of apprehension; (5) the nature of the site of detention; and (6) the practical obstacles inherent in resolving the petitioner's entitlement to the writ.

Judge Bates then discusses these factors in depth. Note this is a reasoned opinion - not some flaky toss-off.

My own preference would look to the scope of expanded territorial jurisdiction - similar to Justice Scalia (but with Gitmo in and Bagram out; his rationale in Boumediene has both out). However, Judge Bates may end up with a majority of SCOTUS on his side.

We shall see, but it will be a while until this case reaches SCOTUS. By that time, the Court's composition could be quite different.

Moreover, the Legislative and Executive branches could totally change the name of the game in all present and future detainee cases by simply amending the DTA and MCA - and spell out new rules for habeas cases.

[jmm99]

Judge Richard Leon has again decided a habeas case, Hedi Hammamy, in favor of continuing detainment.

Judge Rules U.S. May Continue to Hold Guantanamo Detainee
By Del Quentin Wilber
Washington Post Staff Writer
Friday, April 3, 2009; 12:16 PM

A federal judge has ruled that the government may continue to detain a 40-year-old Tunisian at the U.S. military prison at Guantanamo Bay, Cuba.

In a nine-page decision issued yesterday, U.S. District Judge Richard Leon found that the government had produced enough evidence to show that Hedi Hammamy had supported al-Qaeda, the Taliban or their associated forces. Hammamy was challenging his detention in a lawsuit filed in U.S. District Court under the centuries-old legal doctrine of habeas corpus.

Leaving aside the Uighurs, where both Bush and Obama DoJs conceded the absence of evidence allowing detention, the box score on release orders vs. continued detainment orders is roughly 50-50.

[jmm99]

No real surprise here, since requesting an en banc DC Circuit hearing (the alternative) was not likely to lead to a definitive answer. The Uighurs' Petition for Certiorari is discretionary (4 justices can allow it to be heard). The background is here.

First sequel to Boumediene filed
Monday, April 6th, 2009 9:29 am | Lyle Denniston

The first test of the Obama Administration’s detention policy to reach the Supreme Court was filed Monday, symbolically bearing the title Kiyemba v. Obama. It is a case that, at a minimum, could shape the future of 17 Chinese Muslim prisoners still at Guantanamo Bay although cleared for release, but its impact could reach far wider.

More broadly, however, what is at stake ultimately could be the fate of many if not most of the more than 240 prisoners still at Guantanamo, who might have to remain confined there or somewhere else even if the government decides that they are not dangerous enemies.

And, in that broad sense, the new case tests just what the Supreme Court meant last June, in Boumediene v. Bush, when it recognized a constitutional right for Guantanamo detainees to challenge their confinement, and decreed that release from that imprisonment is one remedy that was to remain available. .... [much longer analysis follows]

The detainees' Petition is here; the DC Circuit opinion is here.

As regular readers of this thread know, the Uighurs were determined (and the USG conceded) not to be subject to detention. The question then became what can the courts order with respect to their release. There seem to be four basic paths:

1. Order their release forthwith - without specifying to whom or to where. This has been Judge Leon's approach in his release orders.

2. Order their release into CONUS under conditions roughly equivalent to parole and house arrest - subject to DHS review of immigration status. This was Judge Urbina's approach (reversed by a majority of the DC Circuit in the present case).

3. Order nothing because we have no power to create a remedy. This is what the DC Circuit opinion boils down to.

4. Order their release into the hands of the DHS ("INS" branch) for custody and status determinations. This approach not been used - I don't know why, since the Uighur arguments have turned into immigration law arguments for the most part.

[jmm99]

The DoJ has responded to motions by a number of Uighur detainees, who requested that Bob Gates be held in "conditional" contempt of court because they have not been released. Here is Lyle's analysis.

A new use of Uighurs ruling
Monday, April 6th, 2009 4:33 pm | Lyle Denniston

Within hours after a group of Guantanamo Bay detainees asked the Supreme Court to overturn a recent federal appeals court ruling against the prisoners’ rights [JMM prior post], the Justice Department made a new use of that ruling — this time, to try to head off a contempt-of-court claim against Defense Secretary Robert M. Gates. The development came in two filings in the D.C. Circuit Court, in cases involving five of the 17 Chinese Muslims (Uighurs) who remain at Guantanamo although no longer considered enemies by the Pentagon. .... [longer explanation follows]

The DoJ filings are here and here.

My crystal ball says these motions by the detainees are going nowhere; they will be denied and the DC Circuit will wait to see what SCOTUS decides.

[jmm99]

Another three-judge DC Circuit panel has decided a separate issue in another Kiyemba case - different from the Kiyemba case (though the same person) that is being appealed to SCOTUS, and reported above.

Another legal setback for detainees
Tuesday, April 7th, 2009 3:12 pm | Lyle Denniston

The D.C. Circuit Court, in a compromise decision that opens the courts somewhat further to detainees being held at Guantanamo Bay but limits what courts can do in response, ruled on Tuesday that the government has broad authority to transfer prisoners to other countries. The Executive Branch can do so, the Circuit Court indicated, without “second-guessing” by the courts, and without advance notice to detainees’ lawyers who wanted a chance to try to block a transfer they feared would lead to torture in another country.

The decision spoke in sweeping terms, but its practical impact may be limited to a situation where, because of conditions in the country where a transferee would go, torture was in prospect. The Circuit Court in essence said that detainees need not worry about that, because it is government policy — which it said the courts are obliged to respect — that it will not approve a transfer to any country where torture was a likelihood.

The decision left open a possible judicial check against a transfer if the government knew that a specific country was likely to torture a detainee, yet planned to send him there anyway. The Circuit Court did not make that a binding exception to its decision, simply saying it was not faced with that circumstance as of now so it did not decide it.

The opinion is here - three separate opinions on what the law should be

This case will undoubtedly go to SCOTUS - and also the DC District decision re: the Bagram detainees made by Judge Bates (although that will have to go to the DC Circuit first).

This case deals primarily with the USG's power to transfer prisoners - and the extent of review allowed to the courts. While not an extradition or rendition case as such, the law eventually selected by SCOTUS here will affect those situations as well.

Slowly but surely, the courts are addressing cases where there are real, live factual records (evidence presented and facts found). The scope of review is therefor becoming more definite - even though the judges are splitting as to their conclusions from those facts.

[jmm99]

as the Uighur cases proceed - an unsurprisng single sentence ruling.

Gates spared contempt finding
Friday, April 10th, 2009 7:21 pm | Lyle Denniston

The D.C. Circuit Court, relying on its recent ruling that is now being challenged in the Supreme Court, refused on Friday to hold Defense Secretary Robert M. Gates in contempt of court for failing to bring about the release of 17 Guantanamo Bay detainees. In a one-sentence order (found here), the Circuit Court merely cited its Feb. 18 ruling in Kiyemba v. Obama barring the release into the U.S. of the 17, Chinese nationals who are members of the persecuted Uighur sect.

The Kiyemba ruling is now before the Supreme Court in docket 08-1234. As of now, the Justice Department’s response is due May 7. ...

I think this ends the Uighur cases in the DC District and Circuit courts. All that remains is for the detainees to appeal the DC Circuit decision discussed in my prior post above.

SCOTUS will then have the opportunity not only to refine its prior decisions re: the scope of habeas, but also to define the limits of the habeas remedies if habeas is granted. For all the hell raised about habeas by pundits right and left, no one has yet to be released because of habeas. All releases have been by Executive decisions (Bush II and Obama).

[jmm99]

The DoJ has moved Judge Bates to stay his orders regarding the Bagram detainees, so that DoJ can file an interlocutory appeal to the DC Circuit - and then, by someone, to SCOTUS.

U.S. resists rights at Bagram
Saturday, April 11th, 2009 9:20 am | Lyle Denniston
....
The Justice Department, saying top officials have authorized a swift appeal, asked a federal District Court judge on Friday to put on hold a ruling that would extend some constitutional rights to detainees being held by the U.S. military at Bagram air base in Afghanistan.

At stake, the Department said in a new filing in U.S. District Court, is whether the constitutional right to challenge detention should be extended “for the first time to a theater of war on foreign territory over which the United States exercises neither de jure nor de facto sovereignty.” The Department insisted that the Bagram detention site was not being used just to put prisoners beyond the reach of U.S. courts.

It sought an order by District Judge John D. Bates to certify the issue to the D.C. Circuit Court even though the Bagram detainees’ case is still in a pre-trial stage. “If the Court of Appeals determines that these [detainees] cannot invoke the constitutional privilege of the writ of habeas corpus, then this Court would have no jurisdiction to proceed and litgation of these habeas cases will end,” the filing said.

The Department also asked Judge Bates to stay his ruling while the appeal goes forward, stopping all proceedings in his Court. It said that U.S. Solicitor General Elena Kagan authorized the plea “to seek an expedited appeal.”

“If this Court were to proceed with these cases during the pendency of the appeal,” the motion argued, “the Court would impose serious practical burdens on, and potential harm to, the Government and its efforts to prosecute the war in Afghanistan.” ....

The DoJ's motion is here; and Lyle's discussion of Judge Bates' orders (already reported above in this thread) is here.

Allow me to dissent from the DoJ's position - for reasons having nothing to do with the merits of Judge Bates' opinions (I have already said I think he went a "bridge too far"), or the merits of the detainees' cases (which have not been decided at all).

1. The merits hearings on each of these four cases would consume several days - and would largely consist of documentary evidence already in place. That estimate is based on Judge Leon's handling of a number of such cases.

2. The issue in each case, for the merits hearings, is simply whether the detainee was an "enemy combatant" (old standard) or a "person a member of, or a substantial supporter of, AQ-Taliban or an associated group" (new standard).

3. Thus, merits decisions in all four cases could be had in a month or two - based on cases already discussed, the detainees would not be immediately released no matter what the merits decisions might be.

4. The cases could then be appealed on the basis of a full factual record, including the sealed classified evidence.

5. The SCOTUS detainee cases so far decided have been hampered by the absence of a full factual record - and, hence, have been less well defined than they should have been.

All that having been said, the courts have regularly issued stay orders in these cases - thereby prolonging the legal agony and uncertainty. So, I would expect either Judge Bates or the DC Circuit to issue stay orders.

[jmm99]

Several habeas cases before Judge Walton include claims that go beyond the immediate issuance or not of purely habeas relief (whatever that turns out to be - as discussed in prior posts. Those claims go to the conditions of confinement - and the impact (if any) of the Geneva Conventions on those conditions of confinement.

Analysis: Diminishing “Geneva rights”?
Friday, April 10th, 2009 9:33 pm | Lyle Denniston

Analysis

From early in the U.S. government’s detention of individuals rounded up in the “war on terrorism,” the prisoners have been attempting to gain the protection of a major human rights treaty: the series of agreements known as the Geneva Conventions – a part of international law for 60 years. The Conventions bar the use of torture, abuse, humiliation and acts of indignity against those held in captivity during wartime.

Lawyers in the Bush Administration considered them “obsolete” after the terrorist attacks of Sept. 11, 2001. President Obama, on taking office in January, issued an Executive Order (No. 13,491) decreeing that every person “detained in any armed conflict” is entitled to the Geneva protections.

Detainees’ lawyers, however, would like to solidy Geneva rights so that they did not depend only upon presidential order. Instead, they want the federal courts to have a role, too, with the authority to directly order the U.S. government to respect Geneva rights at Guantanamo. U.S. District Judge Reggie B. Walton is now considering that plea in a series of cases, including Bostan v. Obama (District Court docket 05-883). ...

The DoJ's Opposition makes several bullet points (with of course much longer discussion under each):

I. Habeas cannot be used to challenge conditions of confinement.

II. The Military Commissions Act removes jurisdiction to entertain the substance of petitioners’ claims.

II.[sic! III.] The Geneva Conventions are not privately enforceable.

The DoJ's most telling point, however, is that the DC courts have ruled against detainees on the same type of claim:

(brief, p.8)
As the Court of Appeals and four Judges of this Court have concluded, however, Section 2241(e)(2)’s removal of jurisdiction remains intact after Boumediene. See Kiyemba v. Obama, No. 05-5487, --- F.3d ----, 2009 WL 910997, at *2 (D.C. Cir. Apr. 7, 2009); Al-Adahi v. Obama, No. 08-280, 2009 U.S. Dist. LEXIS at **10-16 (D.D.C. Feb. 10, 2009) (Kessler, J.); Khadr v. Bush, 587 F. Supp. 2d 225, 234-37 (D.D.C. 2008) (Bates, J.); In re Guantanamo Bay Litig., 577 F. Supp. 2d 312, 313-14 (D.D.C. 2008) (Hogan, J.); In re Guantanamo Bay Litig., 570 F. Supp. 2d 13, 17-18 (D.D.C. 2008) (Urbina, J.).

Another weakness in the detainees' claims (those based on conditions of confinement) is that they seek to apply the whole of GC Convention III (the PW/POW convention) to the Gitmo detainees. The applicable GC rights are those under Common Article 3 (contained in all four GCs), as the most recent Executive Order makes clear:

(brief, p.2-3)
Indeed, just two days after taking office, the President issued an Executive Order addressing the treatment of persons in United States custody “to ensure compliance with the treaty obligations of the United States, including the Geneva Conventions.” Exec. Order No. 13,491, 74 Fed. Reg. 4893 (Jan 22, 2009) Introduction. This Executive Order provides that:

Consistent with the requirements of . . . Common Article 3 [of the Geneva Conventions] . . . individuals detained in any armed conflict . . . shall in all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment, and torture), nor to outrages upon personal dignity (including humiliating and degrading treatment), whenever such individuals are in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States.

Exec. Order No. 13,491 at §3(a); see also id. at §3(c).

The DoJ's position gained traction from the very recent decision in a detainee case from an armed conflict of long ago - Noriega. This decision should be of interest to JTF and others who were involved in his capture.

Here is the bottom line:

(opinion, p.2)
Appellant General Manuel Antonio Noriega appeals the decision of the United States District Court for the Southern District of Florida denying his petition for writ of habeas corpus. The district court determined that the Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (“Third Geneva Convention” or “Convention”), does not foreclose the extradition of prisoners of war and that the United States had sufficiently complied with its obligations under the Convention. We affirm and hold that § 5 of the Military Commissions Act of 2006 (“MCA”), Pub. L. No. 109-366, § 5(a), 120 Stat. 2600, 2631, note following 28 U.S.C. § 2241 (2006), precludes Noriega from invoking the Geneva Convention as a source of rights in a habeas proceeding and therefore deny Noriega’s habeas petition. We also conclude that extradition would not violate the Convention.

Noriega was designated a prisoner of war and accorded the benefits conferred on prisoners of war by the Third Geneva Convention.

(opinion p.3, fn1)
The district court determined that Noriega was a prisoner of war under the Third Geneva Convention in response to Noriega’s concerns about the type of care he would receive while in custody. United States v. Noriega, 808 F. Supp. 791, 793–96 (S.D. Fla. 1992) (Hoeveler, J.) (“Noriega I”). Specifically, the district court found that the hostilities in Panama constituted an “armed conflict” within the meaning of article 2, that Noriega was a member of the armed forces of a party to the conflict under article 4, and that the district court was a “competent tribunal” to determine his prisoner of war status under article 5 of the Third Geneva Convention. Id. This determination was not appealed.

Note that Noriega was also convicted of crimes: In April 1992, Noriega was convicted for RICO and RICO conspiracy (18 U.S.C. § 1962(c) and (d)), conspiracy to import and distribute cocaine (21 U.S.C. § 963), distribution of cocaine (21 U.S.C. § 959), manufacture of cocaine (21 U.S.C. § 959), conspiracy to manufacture, distribute, and import cocaine (21 U.S.C. § 963), and unlawful travel to promote a business enterprise involving cocaine (18 U.S.C. § 1952(a)(3)).

So, this 11th Circuit case also reinforces the point that I have been making that detention under the GCs is one thing; and that prosecutions under domestic criminal law are quite another thing. What is interesting is that Noriega's status was determined under the GCs and continues as such, while the length of his confinement was determined by the criminal sentences (all running concurrently).

Since the armed conflict with Panama ended long ago - with long term success as JTF has recently posted, his term of confinement as a POW would have ended long ago.

[jmm99]

Three weeks ago, I briefly noted (#232) an article by Mark Danner, in the NY Review of Books, re: the Red Cross Report on High Value Detainees held in CIA detention.

Mr Danner has followed up with a longer article, which links to the ICRC Report.

The Red Cross Torture Report: What it Means
By Mark Danner
.... [jumping down to his conclusion]
There is a sense in which our society is finally posing that “what should we do” question. That it is doing so only now, after the fact, is a tragedy for the country—and becomes even more damaging as the debate is carried on largely by means of politically driven assertions and leaks. For even as the practice of torture by Americans has withered and died, its potency as a political issue has grown. The issue could not be more important, for it cuts to the basic question of who we are as Americans, and whether our laws and ideals truly guide us in our actions or serve, instead, as a kind of national decoration to be discarded in times of danger. The only way to confront the political power of the issue, and prevent the reappearance of the practice itself, is to take a hard look at the true “empirical evidence of the last five years, hard years,” and speak out, clearly and credibly, about what that story really tells.

Read with some caution and check Mr Danner's references before accepting whole cloth.

The list of the 14 detainees (including KSM) is at p.6 of the report.

[Ken White]

Unduly repetitious and pretentious IMO. His final paragraph sums up the effort:

"For even as the practice of torture by Americans has withered and died, its potency as a political issue has grown. The issue could not be more important, for it cuts to the basic question of who we are as Americans, and whether our laws and ideals truly guide us in our actions or serve, instead, as a kind of national decoration to be discarded in times of danger. The only way to confront the political power of the issue, and prevent the reappearance of the practice itself, is to take a hard look at the true “empirical evidence of the last five years, hard years,” and speak out, clearly and credibly, about what that story really tells."

I would suggest that potency as a political issue is derived mostly from the fact that the writer -- and many in the political arena -- have read little and have no sense of history. We, like every other nation, have at time betrayed our ideals. That, I believe is called human fallibility. It happens. Again and again and again...

I disagree with him on the importance of the issue -- who we are as Americans is simply answered: About 300 Million people from varying backgrounds and of different educational attainment who are inclined to be rather individualistic and defy categorization. Our laws and ideal will guide as so long as they mesh with our individual goals, desires, capabilities and are not deflected by external pressures. Nations, as separate units and collectively as peoples often react along the same lines. Everyone, every nation gets deflected on occasion, often for selfish and not smart reasons.

His polemic seems foolishly to envision a unified, coherent mass of like thinking folks who are "Americans." That, frankly is ridiculous. There are probably as many who cheer waterboarding as there who think it torture -- and neither side has the ability to say with no reclama that the other is wrong; they can merely state their opinion and they cannot and should not be able to enforce that opinion on others. This, as he obviously forgets, is, after all, America.

In this case, it was not so much a 'decoration' to be discarded in a time of danger nearly so much as it was a pragmatic reaction to a minor threat. An overreaction, true -- but not evil in intent and one that got corrected (as our system was designed to do). In that it mirrored actions taken many time before by this same Nation in such circumstances. Actions that may or may nor in future again occur. Who can say?

One can say one hopes not -- others can say why not. Still others would fall in the 'Choice not stated' category -- and that is as it should be. fortunately, we have a Republic and that prevents long term abuses by any faction who occupy a temporary majority. It would be worthwhile for those with such glaring ignorance or elision of our past and volatile, extremely short (apparently) memories to realize that such things occur due to calculational errors on the part of humans and that such errors are not restricted to a specific ideology or political leaning. Slippery slopes can allow slides in various directions...

His fatuous comment that the issue possesses political power has some validity but only because some wish that to be true -- not for the good of the US but for partisan or ideological reasons. One wonders if they also wish to go back to Roosevelt, Wilson, Lincoln et. al. and blather -- or is it bleat -- about their transgressions.

As for the very, very silly "prevent the reappearance of the practice itself', good luck with that immature and rather childish dream...

(All the above from me proving that one need not write for the NY Review of Books to be long winded... )

[jmm99]

but then I am not known for brevity. A rather reasoned response (IMO).

Thought I'd highlight some features of the ICRC Report (the .pdf is set up not to allow cut & paste):

p.5 - The 14 detainees were interviewed in two sessions: 6-11 Oct & 4-14 Dec 2006. The report is based on what they alleged their treatment to have been. The ICRC was impressed by the consistency of their narratives. There are, of course, reasons other than factual accuracy that account for consistency in narratives.

pp.23-25 - Legal aspects. The report (in its footnotes) manages to cite virtually every convention and legal theory that supports its interpretation and its implementation requirements - whether accepted by the US or not. Long discussion here of these "authorities" would not be presently fruitful. Suffice to say that the ICRC and the US agree that Common Article 3 of the GCs applies to these detainees. And, I will add, the US accepts a number of US statutes that interpret and implement CA 3.

pp.29-38 - Annex I reports the verbatim (well sort of verbatim) statements of three detainees - KSM is the third. "Sort of verbatim" because these statements are obviously (to a guy who has spent more than a few hours "woodshedding" witnesses), the finished end-product of a process. It would be interesting if the ICRC has complete interview transcripts or videotapes of its interviews with the detainees.

Anyway, read them; draw your own conclusions - I report, you decide. They involve more questions of fact and perception than law.

[jmm99]

AG Holder announced that CIA employees would not be prosecuted re: alleged torture claims.

CIA employees won't be tried for waterboarding
Holder gives first definitive assurance officials are legally in the clear
...
WASHINGTON - The Obama administration on Thursday informed CIA officials who used waterboarding and other harsh interrogation tactics on terror suspects that they will not be prosecuted.

Even before President Barack Obama took office in January, aides signaled his administration was not likely to bring criminal charges against CIA employees for their roles in the secret, coercive terrorist interrogation program. It had been deemed legal at the time through opinions issued by the Justice Department under the Bush administration.

But the statement issued Thursday by Attorney General Eric Holder, the nation's chief law enforcement officer, is the first definitive assurance that those CIA officials are in the clear, as long as their actions were in line with the legal advice at the time. ...

The DoJ also released four memoes re: interrogation. The three at MSNBC are from 2002, 2005 & 2005.