Crimes, War Crimes and the War on Terror

[davidbfpo]

The joint House of Parliamentary Joint Committee on Human Rights (i.e. Commons and Lords) has published a report on the allegations of UK agencies involvement in torture, notably in the Binyam Mohammed case; reported in: http://www.telegraph.co.uk/news/ukne...port-says.html

Note published after Parliament goes on holiday and can be best described as "shouting at the walls of (Whitehall) Jericho". The statement that the intelligence agencies are unaccountable is of note, as the agencies and Whitehall claim there is a highly developed system of accountability.

davidbfpo

[davidbfpo]

The Sunday Telegraph has a story on a joint statement by the Foriegn and Home Secretaries (responsible for SIS & Security Service; aka MI6 & MI5): http://www.telegraph.co.uk/news/news...ers-admit.html

Nice sub-title

It is impossible to guarantee that information used by the security services has not been obtained through torture, David Miliband and Alan Johnson now admit.

The ministers statement is: http://www.telegraph.co.uk/comment/5...-all-risk.html

davidbfpo

[davidbfpo]

Starting with the current head of SIS (MI6) and then others within Whitehall-Westminster - in response to allegations of collusion with torture: http://www.telegraph.co.uk/news/news...t-inquiry.html

davidbfpo

[jmm99]

are looking more likely from this AP article, AP source: Obama officials to tour Michigan prison considered for Gitmo detainees.

Standish Max is in the SE corner of our Congressional District. A better choice might be to transfer the inmates at Baraga Max to Standish Max - and put the Gitmo people in Baraga Max (30 miles from here), which is really isolated.

[Ron Humphrey]

are looking more likely from this AP article, AP source: Obama officials to tour Michigan prison considered for Gitmo detainees.

Standish Max is in the SE corner of our Congressional District. A better choice might be to transfer the inmates at Baraga Max to Standish Max - and put the Gitmo people in Baraga Max (30 miles from here), which is really isolated.

area like in terms of the infrastructure development that would be needed to support the influx of all those likely to show up related to trials,etc.

[jmm99]

so, about 100 miles from the Detroit Metro area.

Since the Obama administration has not decided which detainees to try, and where to try them, a large influx may or may not occur. Military commission trials (if there are any) could find a home at one of the Detroit area military bases. Although, I expect that Standish Max has a courtroom (to avoid transporting its high risk inmates); Baraga Max has one.

Habeas cases are presently venued in the DC Circuit; although if detainees are moved into CONUS, I suppose a change of venue could occur. For Standish, that would be the Eastern District of Michigan (main courthouse in Detroit).

[davidbfpo]

A story from a US magazine Mother Jones, which reads well, but cites little external support: http://www.motherjones.com/politics/...-little-gitmos

The magazine's standpoint appears to be radical.

(Added after some research)

I've not heard of this case before, which involves a US national (here on a student visa) who committed an offence here - apparently - and is accussed of AQ support in the USA. Arrested in the UK in June 2006, extradited in but was extradited to the USA in 2007 and has yet to have his full court trial. Two good links: http://www.dailyestimate.com/article.asp?id=9781 and http://www.billwarnerpi.com/2008/10/...queens-ny.html Note the Mother Jones article is similar to the later in it's detail.

The story "broke" as the defendant pleaded not guilty this week in court.

davidbfpo

[jmm99]

Hello David,

No one can ever accuse you of overstatement :

The magazine's standpoint appears to be radical.

I'd say very radical; but having said that, it does sometimes come up with truths ignored by the mainstream - as does a broken clock twice a day. This does not seem to be one of those occasions.

The author of the piece makes any number of sweeping assertions, without providing any links to the original sources (such as court pleadings and decisions), which could support or demolish his argument made. Since the author, who in essence is making a legal argument, has totally failed to present points and authorities (nor a factual record, which can be reviewed), I do not feel compelled to respond.

The first of your links presents a more balanced view than Mother Jones. Mr Warner may have his own axes to grind (from the other side) - I don't really know. Mr Hashmi's attorney, Sean Maher is a National Lawyers Guild member (which is left leaning - not unknown to have had CPUSA members, but also some friends of mine who were simply consistently left). That doesn't mean that what Mr Maher says is right or wrong because of that.

The 2007 DoJ press release summarizing the indictment and extradition is here. The Free Fahad website ("Fahad" is Hashmi's nickname) has some court records & a lot of pro-Fahad materials. Also a button for making contributions to his defense fund.

The docket entry card for the Hashmi case has some 100 entries between 24 May 2006 and 13 Apr 2009. Read and judge for yourselves. The underlined numbers (e.g., 1 , 97) in the second column of the docket entry card are linked to the court records. But, access requires a PACER login and password (a PACER account with the Federal courts - $).

Best regards

Mike

[jmm99]

I don't see this as anything that earthshaking, since Judge Hogan and other judges have charted a similar path taken by Judge Walton in his two cases.

In any event, here is Lyle Denniston's analysis:

Setback for U.S. on detention claims
Wednesday, August 19th, 2009 11:11 pm | Lyle Denniston

Stepping in boldly to take control of an issue that has lingered for five years in Guantanamo Bay detainee cases — a dispute that traces directly back to the Supreme Court’s first ruling five years ago on government detention power, a federal judge on Wednesday put strict new limits on the government’s use of its main pile of evidence for justifying further confinement of prisoners.

U.S. District Judge Reggie B. Walton went further than any of his District Court colleagues has gone in cutting back on the Pentagon’s option of proving its detention cases by using a kind of evidence that normally would not be allowed in court — hearsay, as a substitute for direct proof of facts. The judge refused to follow the government’s plea that all of its hearsay evidence about an individual detainee should have a special rank, admitted into court with a presumption that it was reliable unless detainees’ lawyers could show it was not. ....

Judge Walton's order concludes:

The approach taken by this member of the Court comports with the standard set forth by Judge Hogan in his case management order (subject to the clarifications of that standard set forth above). Consequently, both with respect to these particular habeas corpus petitions and for all of the active habeas corpus petitions pending before this member of the Court, the government must establish that any proffered hearsay evidence is admissible either (1) under the Federal Rules of Evidence, as modified by 28 U.S.C. § 2246, or (2) by demonstrating that (a) the proffered hearsay is reliable and (b) that the provision of non-hearsay evidence would unduly burden the government (as that term is construed in this opinion) or interfere with the government’s ability to protect national security.

A wide scope of hearsay evidence is allowed directly under the FRE, especially as modified by the habeas statute (28 USC 2246). In addition, hearsay evidence could be admitted under either the "undue burden" or "national security" exceptions.

It would not surprise that a 'battlefield" exception will develop - which would fit under the FRE and the habeas statute. That is, records developed in the usual and normal course of detainee handling (including statements made by the detainee). In such cases, compliance with the military's FMs dealing with that process would be critical as to whether the evidence comes in or not.

On the other hand, I'd expect that records and affidavits from "extraordinary" and "enhanced" processes will be viewed much less favorably by the Federal courts.

[Air-On]

Vir prudens non contra ventum mingit

Right you are, my friend!
Thank you and all posters on this thread for all the correct reasoning on the fate of terrorist prisoners. It all comes down to the simplest definition of our Torah: "don't do to others what is abhorrent to yourself". The rest is just explanation...
As you all certainly remember, Israel recently discussed downgrading the inprisonment conditions of hamas terrorists in our jails - to bring them to the level of existence (if he has not , G'd forbid, been murdered already) of kidnapped corporal Shalit. Arab prisoners in Israel have privileges like the right to cook their own "halal" food, cable tv, marital visits, study up to college level... Israel is highly moral, these guys live better than many honest-to-G'd people. Even then, the world paint us worse than the devil - but that is another story.
The Israeli officer that refused to let this motion follow through bravely said: "-I want to be able to look at my face on the mirror, when i wake up every morning."). It is a moral stance, and it sets us apart from the savagery of these NSA... Indeed, it is refreshing to see this sane debate, makes me proud of humbly "lurking" here and learning from decent people. Why, just yesterday the Jerusalem Post informed that two women had their fraud-preventing inked fingers cut off by the barbarian talibans ).
But!!! thanks also for The Hearty Laugh!!! I studied Latin in College, so I could understand: "Vir prudens non contra ventum mingit":a wise man does not piss against the wind... A saying in Brazil goes "don't ever spit upwards: it will fall flat on your face"

[jmm99]

Judge Gladys Kessler in May entered a merits decision on the habeas petition of Alla Ali Bin Ali Ahmed of Yemen, ordering his release, which is discussed here and here.

Judge Kessler has decided a second Yemeni case, Mohammed Al-Adahi, whose release was also ordered.

Difficulty in justifying detention
Friday, August 21st, 2009 8:16 pm | Lyle Denniston

A federal judge’s lengthy but heavily censored opinion released on Friday demonstrated anew the difficulty that the Pentagon and U.S. intelligence agencies are having in trying to justify in court the continued holding of some of the prisoners at Guantanamo Bay, Cuba. A prisoner with family links to terrorist leader Osama Bin Laden, with personal encounters with Bin Laden, with at least a brief round of training in an Al-Qaeda military camp, with close knowledge of some of bin Laden’s bodyguards, and with other alleged links to Al-Qaeda soldiers — all of that was not enough, singly or together, to justify the detention of a Yemeni national, Mohammed Al-Adahi, Senior U.S. District Judge Gladys Kessler ruled. ...

Judge Kessler's opinion is heavily redacted (references to classified evidence are blacked out).

My comments to Judge Kessler's first decision apply equally here. In short, the judge accepted the legal definitions of the DoJ, as well as admitting its evidence; but found, as a matter of fact, that the USG had failed to make its case. So, no law was made (one way or the other) in this case.[*]

You may judge for yourself, after reading Judge Kessler's opinion, whether you would have found the same lack of facts supporting the USG's case.

-------------------------
[*] Judge Kessler did clarify one legal standard. The "Miranda" and like rules of exclusion do NOT apply to these proceedings (p.21 n.14):

14. Petitioner's counsel argues that all ex parte statements made by Petitioner must be excluded from the record. Pet.'s Mot. at 18 -20. They maintain that because Petitioner was represented by counsel as of February 7, 2005, and all interrogations after that date were not consented to by counsel, Constitutional and ethical rules require that evidence from those interrogations be excluded. Id.

The Court concludes that the ex parte statements are admissible for the following reasons. First, under Supreme Court and Court of Appeals precedent, only defendants in the criminal context can claim Sixth Amendment protections. Montejo v. Louisiana, 129 S.Ct. 2079, 2085 (2009) (stating that Sixth Amendment "guarantees a defendant the right to have counsel at all 'critical' stages of the criminal proceedings.O) (emphasis added); United States v. Sutton, 801 F.2d 1346, 1365 (D.C. Cir. 1986) (finding that right to counsel attaches "only after the initiation of 'adversary judicial criminal proceedings, I e.g., formal charge, preliminary hearing, indictment, information, or arraignment."). Petitioner is not involved in a criminal proceeding, and thus the Sixth Amendment does not apply. Cf. Coleman v. Balkcom, 451 U.S. 949, 954 (1981) (Marshall, J., dissenting from denial of certiorari).

Second, Petitioner argues that the Government's conduct amounts to a violation of ethical rules. The interrogators in this case were not the attorneys representing the Government in habeas litigation; rather; they were agents conducting an investigation. There is no evidence that Government attorneys controlled or guided interrogations of Al-Adahi. Consequently, there were no ethical violations. See United States v. Lemonakis, 485 F.2d 941, 956 (D.C. Cir. 1973); Sutton, 801 F.2d at 1366.

In the end, the detainee's statements did the government no good. In general, Judge Kessler found no inculpatory statements proving AQ membership and a number of exculpatory statements, which she accepted.

[jmm99]

The Justice Department formally notified a federal judge on Monday that it has carried out the court order to return the Afghan detainee, Mohammed Jawad, to Astan, ending nearly a seven-year stay in U.S. military custody, most recently at Guantanamo Bay, Cuba.

The DoJ court filing, the DoJ press release and the ACLU press release are online - Jawad was represented by the ACLU and U.S. Air Force Major David Frakt (whose statement is included in the ACLU release).

The issue of whether Jawad threw, or was an accessory to throwing, the grenade (which was the reason he was detained in the first place), was never tried on the merits. I'm reminded of the Onion Field - book & movie.

[jmm99]

CIA inspector general's report on interrogation during the war on terror is online at the Wash Post (also linked earlier on SWJBlog) - 234pp.

[jmm99]

Al Odah was caught with AK in hand on the border near Tora Bora, leading Judge Colleen Kollar-Kotelly (who is an old pro in the Intel area) to deny his habeas petition in a now-unclassified opinion, analysed at SCOTUSBlog:

Al Odah loses challenge, after five years
Monday, August 31st, 2009 11:01 pm | Lyle Denniston

More than five years after the Supreme Court ruled that a Kuwaiti national, Fawzi Khalid Abdullah Fahad Al Odah, had a right to challenge his detention at Guantanamo Bay, a federal judge has decided that challenge, upholding Al Odah’s captivity. Al Odah’s challenge was the second oldest of the Guantanamo cases in U.S. District Court, but went to the Supreme Court in 2003 as part of the first test of presidential detention power. (Al Odah’s case was a companion to Rasul v. Bush, the first-filed Guantanamo case; the two cases were decided together on June 28, 2004.)
....
In deciding Al Odah’s case, the judge borrowed from other District judges a definition of presidential detention power that is less expansive than those proposed by both the Obama Administration and, before it, the Bush Administration. Still, she concluded that the government had met that standard after finding that Al Odah had gone to Afghanistan and engaged there in a series of actions that, together, showed he “became part of Taliban and al Qaeda forces.”

The key inquiry, Kollar-Kotelly said, in “whether an individual has become part of one or more” of the Taliban, al Qaeda or “associated forces” is “whether the individual functions or participates within or under the command structure of the organization — ie., whether he received and executes orders or directions.”

Judge Kollar-Kotelly's opinion (32 pages), as compared to the opinion of Judge Gladys Kessler a week ago, gives far more credence to the USG's evidence and the logical inferences to be drawn from it. In short, as every trial lawyer knows, the disposition of the trier of fact in the most critical factor in a merits hearing.

[Fuchs]

"Fear was no excuse to condone torture"

http://www.miamiherald.com/opinion/o...y/1227832.html

Charles C. Krulak was commandant of the Marine Corps from 1995 to 1999. Joseph P. Hoar was commander in chief of U.S. Central Command from 1991 to 1994.

[jmm99]

Thanks for the link to GENs Krulak and Hoar's op-ed. Their position is not surprising. It simply reflects the position of military law from before 9/11 and after.

For example, take a look at MCRP 4-11.8B, War Crimes, 2005, p.13. That doctrinal manual is simply an amplification of the Corps' policies going back to and before Chuck Krulak was Commandant.

The uniform Army and Marine policy on detainees (regardless of their eventual legal status) held by regular units under standing orders is that all detainees are to be treated as EPW or civilians until their status is determined by higher authorities. Refs to FMs are here and here.

No matter what the eventual status of a detainee (GC III, GC IV or Common Article 3), military law provides no cover for either extraordinary renditions or enhanced interrogations. The latter, of course, were "sanctified" by the memos of John Yoo and others.

The Yoo position was roundly criticized by MG Charles J. Dunlap (Deputy Judge Advocate General of the U.S. Air Force), Lawfare Today: A Perspective (2008), starting at p.5 of pdf. In answer to Yoo's attacks on JAG officers for attacking his positions, Charlie Dunlap had this to say (in part):

Professor Yoo’s motivation for lashing out at JAGs is not difficult to discern: as Charlie Savage’s new book reports, [24] JAGs opposed, with some success, several of the legal propositions Yoo touted when he worked in government.

Professor Yoo contends that the JAG legal opinions amounted to no more than simply “policy preferences” that should have yielded to his concept of the “unified decisionmaking” of the executive branch. I beg to differ. JAG opposition to harsh physical interrogation techniques was a reflection of an analysis of the fundamental principles of human decency that underpin law in this country, not to mention around the globe.

[24] 24 Charlie Savage, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy (Little, Brown & Co., 2007).

The politics of all this is part of the freak show that passes for US cable news. I don't want to go there; and I hope you'll respect my wishes on that point. If VP Cheney is indicted (here or elsewhere), you can be assured I will report on that in detail.

In the meantime, be my guest if you want to dissect the Yoo memos line by line; review the DoD orders re: detainees; and discuss US and German cases re detainees and torture - in short, law, not politics.

[jmm99]

From last nite's SCOTUSBlog, and the Washington Post:

Analysis: Some movement on Bagram?
Sunday, September 13th, 2009 11:00 pm | Lyle Denniston

Analysis

For almost all of the time it has been in office, the Obama Administration has held to the position that the Supreme Court’s ruling in 2008 giving some terrorism suspects a right to challenge their detention by the U.S. military does not apply, in any way, to prisoners being detained at Bagram air base in Afghanistan — a prison population now said to number more than 600.

On Monday, the Administration is expected to spell out its views anew, amid hints that it may be willing to let the Bagram detainees have some rights — though considerably fewer rights than detainees at Guantanamo Bay in Cuba have under the Supreme Court’s decision 15 months ago in Boumediene v. Bush.

From what has appeared over this past weekend in a series of leaks to selected news organizations, seemingly originating mainly at the Pentagon, it seems that the Administration is going to try to shore up its case against court-ordered declaration of rights at Bagram by saying it is going to make some procedural reforms there on its own.

Monday is the deadline for the Administration to file its appeal brief in the D.C. Circuit Court in the combined cases of three Bagram prisoners who, a federal judge ruled last April, have rights to pursue habeas challenges under Boumediene. The judge, however, has put that ruling on hold pending the Administration’s appeal to the Circuit Court. The new position on Bagram could be spelled out in that filing. .... (longer analysis by Lyle)

and:

U.S. Gives New Rights To Afghan Prisoners
Indefinite Detention Can Be Challenged
By Karen DeYoung and Peter Finn
Washington Post Staff Writers
Sunday, September 13, 2009

Hundreds of prisoners held by the U.S. military in Afghanistan will for the first time have the right to challenge their indefinite detention and call witnesses in their defense under a new review system being put in place this week, according to administration officials.

The new system will be applied to the more than 600 Afghans held at the Bagram military base, and will mark the first substantive change in the overseas detention policies that President Obama inherited from the Bush administration.
.....
Under the new rules, each detainee will be assigned a U.S. military official, not a lawyer, to represent his interests and examine evidence against him. In proceedings before a board composed of military officers, detainees will have the right to call witnesses and present evidence when it is "reasonably available," the official said. The boards will determine whether detainees should be held by the United States, turned over to Afghan authorities or released. For those ordered held longer, the process will be repeated at six-month intervals.

The Bagram system is similar to the annual Administrative Review Boards used for suspected terrorists at the U.S. military prison at Guantanamo Bay, Cuba. Officials said the review proceedings at Bagram will mark an improvement in part because they will be held in detainees' home countries -- where witnesses and evidence are close at hand. ....

My take: This is simply old wine in a new bottle, with not much change in the label - in short, a halfway measure that will end up satisfying no one. In fact, given the checkered history of the Gitmo CSRTs, the described Bagram program starts off with two strikes against it.

So, to be practical, the Obama administration would probably find it much cheaper and better PR-wise to assign a number of "Federal magistrates" to Bagram, who would be independent of any command influence. A Federal magistrate in our Article III Federal District courts is the judicial officer subordinate to District judges. The magistrate handles preliminary hearings (bail, probable cause, motions, discovery); and is not an Article III judge. My proposed "Bagram magistrate" would cover the same ground. The office could be created legislatively under joint presidential and congressional powers. I don't expect to see that option exercised.

In addition to events at Bagram, a large number of appeals are pending before the DC and other circuits involving cases pertinent to this thread. Some appeals are also pending before SCOTUS. I've been waiting for some decisions to report - I expect we will see a number of them in coming months.

[davidbfpo]

JMM,

Apologies for the delay in posting.

BBC News reports SIS (MI6) have referred an officer to the Attorney General and the police will no winvestigate: http://news.bbc.co.uk/1/hi/uk/8250805.stm revolves around allegations of complicity in torture and note officialdom says this case is seperate from Binyam Mohammed.

BBC News report on a 'Control Order' (home detention plus) being withdrawn: http://news.bbc.co.uk/1/hi/uk/8240997.stm and states

A terror suspect has been released from a control order because ministers did not want to reveal secret intelligence at public court hearings in his case.

One person held on similar home detention, on immigration grounds, has been interviewed: http://www.julyseventh.co.uk/j7-inte...l-samamra.html and more details on the campaign etc on similar cases is on: http://www.slowtorture.com/

There are twenty such orders and many suspect they will too lapse.

davidbfpo

[jmm99]

The saga of continuing investigations into "torture", "enhanced interrogation" and "extraordinary rendition" continues on both sides of the Atlantic (UK and US). At some point in time, one can expect a case, criminal or civil, to reach a merits hearing (trial) where the actual evidence (as opposed to allegations) can be subjected to cross-examination by both sides. Only then can we know something that comes as close to the "truth" as we can get. In the meantime, we can only be patient.

The UK stories, about the control orders (home detention+) and long-term confinement pending extradition, struck me as odd (or possibly inaccurate).

As to the control orders, these seem applicable to UK legal residents and citizens, who are not being held under some sort of Laws of War concept and who have not been charged with specific criminal charges.

We did have one case (Ali al-Marri - cited in some 20 posts in this thread), which involved a US legal resident detained in custody under a Presidential order as an alleged member of AQ. Al-Marri pleaded guilty in Federal court to one count of conspiring with others to provide material support to AQ (30 Apr 2009), a charge carrying a 15-year maximum (he spent about 5-1/2 years in custody). He has not been sentenced yet - the current controversy being over what documents will be produced at his sentencing hearing.

The al-Marri case was a definite mess. AG John Ashcroft felt that al-Marri, as a legal resident in the US, had to be charged under Federal criminal law, not under the LOAC. President Bush overruled Ashcroft, determined that al-Marri was an "enemy combatant", and ordered him detained under the LOAC. A series of Federal court actions resulted in some mixed decisions, finally reaching SCOTUS. The Obama DoJ then cut a deal with al-Marri; thereby avoiding a SCOTUS decision that quite possibly would have ordered al-Marri freed from LOAC detainment, but still subject to criminal charges.

It appears that there is a similar UK constitutional problem with control orders.

The UK case involving secret evidence also seemed odd - although various US cases (mostly civil suits involving the CIA) have been settled because of reluctance to disclose classified data (so-called "graymail" cases). Generally, in the many detainee cases, classified evidence has not been a problem. The evidence is disclosed to the court and to the detainees' lawyers (who have the required security clearances) - redacted in the public opinions, set out in full in the classified opinions and annexes. Anyway, it seemed odd that secret evidence would have to be disclosed (publically, I am supposing ?) in the UK proceeding.

Finally, I was surprised (if it is true) that someone could be held for 10 years pending an UK extradition hearing. I looked over the Michigan extradition procedure which in the normal process calls for an immediate hearing before a judge, where the detainee can (1) waive hearing and consent to extradition; (2) demand an immediate hearing on the sufficiency of the extradition documents; or (3) demand a habeas corpus hearing which is also an expidited process (we are talking days, not years).

There is an alternative process (aimed at a fleeing felon situation) where an arrest can precede preparation of the detailed paperwork required in the normal extradition process. In that type of case, the detainee is again immediately brought before a judge who can grant bail, or order a 30-day detention (with another 30-day extension) for the requisite paperwork to be prepared. And, the detainee can, at any time, file for a habeas corpus hearing.

I find it hard to believe that UK and Michigan procedures would be that much different - so as to allow a 10-year detention without a hearing, unless some very special circumstances were involved.

-------------------------------
[*] "Immediate" in Michigan normally means the next working day after detention.

[jmm99]

SCOTUSBlog has two links to the Obama DoJ brief re: habeas rights at Bagram, and to the refined DoD regulations providing a series of status hearings for detainees at that facility (an Addendum to the brief).

The brief and addendum add to about 100 pages and reference a nuimber of other documents, which I have to find online, download and read. I expect I will have some thoughts later in the week.