Crimes, War Crimes and the War on Terror

[jmm99]

Mohamed Jawad is charged as an unlawful enemy combatant, with attempted murder and committing serious bodily harm, based on a grenade thrown into military vehicle wounding 2 SF NCOs and their Afghan interpreter.

This is a very simple case factually. The guy either did it, assisted an accomplice to do it, or he didn't (i.e., was an "innocent by-stander"). It has received considerable press for reasons not material to the charges.

Charge Sheet at

http://www.defenselink.mil/news/Jan2...awadcharge.pdf

Defense Brief No.1

http://www.defenselink.mil/news/d200...on%20D-007.pdf

Defense Brief No.2

http://www.defenselink.mil/news/d200...20Detainee.pdf

[jmm99]

Omar Ahmed Khadr originally was charged with murder, attempted murder, conspiracy with AQ, providing support to AQ & spying - non-capital case on all counts.

As with Jawad, the murder part of the case is not factually complex - the guy did it or he didn't. The other charges are more akin to Hamdan.

Also, as with Jawad and more so, the Khadr case has generated a large press coverage on issues not material to the charges.

Quite a few pleadings & opinions have been filed in this case. Some are not worth looking at because they are heavily redacted (classified) - e.g., a 7MB .pdf file "06/04/2007 - Motion Session (Charges dismissed)" of 305 pages (95+% redacted). Two rulings of interest (to me) are linked below.

Charge Sheet

http://www.defenselink.mil/news/Apr2...drreferral.pdf

Filings Inventory thru 7 May 2008 (30 pages)

http://www.defenselink.mil/news/d20080508us-khadr.pdf

Ruling No 1 (Bill of Attainder)

http://www.defenselink.mil/news/Feb2...1attainder.pdf

Ruling No 2 (Child Soldier)

http://www.defenselink.mil/news/d20080430Motion.pdf

------------------------------
I'll post something within the near future on upcoming events in Parhat (## 44 & 45) - the Uighur Muslim whose claim was basically this:

from Lyle Denniston, link in #45
Parhat is a Chinese citizen of Uighur heritage. The Uighurs reside mainly in the far-western Chinese province of Zinjiang, which they call East Turkistan. Parhat claims that he fled China because of oppression and torture there, and went to Afghanistan to fight against China. He claims that he had never engaged in any hostilities against the U.S., and that his only enemy is China.

The DC Circuit held on the facts that he was not an enemy combatant. The problem is what to do with Mr. Parhat, who has been found not guilty. China might like to take him, but that would probably mean a de facto death sentence for Parhat. This case has some aspects of a human rights case, where positions cannot be easily divided into left and right, liberal and conservative.

[jmm99]

This is a long series of posts, but they are needed to understand the last one - which is news.

Analysis: Escalating the Parhat case
Tuesday, August 19th, 2008 7:25 pm | Lyle Denniston
Analysis

In the annals of the ongoing constitutional battle in America’s courts over the “war-on-terrorism,” Shafiq Rasul, Yaser Esam Hamdi, Salim Ahmed Hamdan and Lakhdar Boumediene already have made history — especially in the Supreme Court. It now appears that Huzaifa Parhat could be the next detainee added to that list.

A member of a long-persecuted Chinese Muslim community, the Uighurs, Parhat is moving rapidly toward a courthouse showdown of major proportions.

He is attempting to become the first Guantanamo Bay detainee to take the witness stand in a civilian courtroom inside the U.S., to make a personal case for freedom, and, more significantly, he is seeking actual release into the U.S. to live, at least temporarily, with a group of Uighurs in the Washington, D.C., area. ...

http://www.scotusblog.com/wp/analysi...e-parhat-case/

This is no longer a run of the mill "enemy combatant" case, because Parhat can no longer be considered even an accused "enemy combatant". That follows from two facts:

1. The Court of Appeals' holding that the government, in his DTA hearing, had not introduced enough evidence to meet even the low "preponderence of the evidence" standard (the 50-yard line and a nose). Judging from that opinion, the evidence presented was multiple level hearsay, and not very pursuasive hearsay at that.

2. The Court of Appeals gave the government the chance to retry Parhat's DTA status. The government waived that right and declined to retry Parhat.

The problem is what to do with Parhat and the other Uighurd. Back to Lyle's analysis:

Parhat and the government agree that he should not be sent back to China, his home country, because of his apparently very real fears of further persecution. But the government has told the courts repeatedly it has been unable to persuade any other country to accept him. And, until it does, the government has argued, he must remain at Guantanamo to “wind up” his detention.

The situation with Parhat is apparently not an isolated one. An unknown number of detainees (the number could be substantial) want release, but do not want to be sent back to their home countries, for fear of torture or abuse. Even if ruled not to be enemy combatants, the “wind up” theory would keep them in the Guantanamo prison for unspecified periods.

Recent Chinese problems with Uighurs substantiate the practical problem. Another practical problem is that Parhat and his friends are not white lambs. Their story is that they came to Afghanistan to fight Chinese - the story makes more sense if they came there to learn how to fight Chinese.

If they were simply illegal immigrants to the US, the INS rules would apply; but we brought them here. We do not want to send them back to Afghanistan - they might change their mind about who their enemy is. And, I do not really want them living next door to me.

In light of the legal costs that will build up in this and related cases, the parties should make nice and agree that the government (our taxes) purchase a nice, secure Holiday Inn Express with room service. We might save some money that way.

In any event, here is Parhat's brief and its bottom line:

We concede that there is a substantial practical reason why this Court may wish to implement the Circuit’s ruling in stages. The government is authorized to transfer Parhat to an appropriate and safe third country. And nothing would prevent it from effecting a transfer by exercising its power to deport (again, to a proper country) even after Parhat were physically present. Accordingly, a practical balancing suggests that he should first be paroled here, under such reasonable conditions of release as the Court imposes. The Court may grant to the government a reasonable time to attempt to implement an appropriate transfer before final judgment is ordered in his habeas case. His presence here would, as a practical matter enhance chances of a transfer, and the Court might appropriately impose conditions to protect the government’s legitimate interest in so doing. This must happen promptly. The urgency of relief is only underscored by this Court’s recent determination that it may not intrude judicially into the conditions of confinement in Guantánamo.

http://www.scotusblog.com/wp/wp-cont...ct-8-15-08.pdf

A series of other detainee events ensued after 19 Aug, which seem best discussed one by one. However, one of them has an Uighur update

Detainee hearings start Oct. 6
Thursday, August 21st, 2008 10:12 pm | Lyle Denniston
......
Meanwhile, down the corridor from Judge Leon’s courtroom, U.S. District Judge Ricardo M. Urbina was holding a hearing on the fate of 17 members of an often-persecuted Chinese Muslim minority, the Uighurs, who are being held at Guantanamo. The Pentagon has decided that it will no longer seek to prove that five of them should remain designated as enemies, but the government has not yet found countries other than China to take them.

Judge Urbina chastised the government for saying in court papers that it was “constantly reviewing” its chances for releasing the Uighurs, and yet had not been able to decide whether all of them should remain at Guantanamo under the label “enemy combatant.”

The judge also suggested that he may agree to a request by the Uighur detainees’ lawyers that they be brought personally to the U.S., to appear in court to defend themselves against accusations of terrorist links. “Maybe that is an option,” the judge remarked.

Among the group whose cases are in Urbina’s court is Huzaifa Parhat, who is seeking release into the U.S. to live in the Washington, D.C., area temporarily while he seeks to win his release from continued captivity. The Pentagon has decided he is no longer an “enemy combatant,” but the government is fervently opposing any attempt to bring detainees to the mainland.

http://www.scotusblog.com/wp/detaine...s-start-oct-6/

[jmm99]

We have a fast-stepping judge here

Detainee hearings start Oct. 6
Thursday, August 21st, 2008 10:12 pm | Lyle Denniston
....
In late 2001, just weeks after the government first started taking prisoners in the “war on terrorism,” Bush Administration officials chose Guantanamo Bay as the place to hold those detainees in order to keep them beyond the reach of U.S. courts and away from any terrorist activity. Now, more than six years and four Supreme Court decisions later, the detainees for the first time will get a hearing in civilian court on claims they are being held unlawfully; the first hearing is set to start Oct. 6.

U.S. District Judge Richard J. Leon, who is working on what he calls a “compressed” timetable, disclosed Thursday that he will hold the first habeas hearings on a day that he said “seems only fitting — the first Monday in October.” That, of course, is the same day the Supreme Court returns to work after its summer recess, some four months after its ruling in Boumediene v. Bush giving the Guantanamo detainees a constitutional right to pursue habeas challenges to their captivity.

The Boumediene case (it gets its name from Lakhdar Boumediene, an Algerian, and includes five others from that country, all of whom had been living in Bosnia) is back in District Court, before Judge Leon. Mostly by coincidence, the judge said Thursday, that will be the case that comes up first for a week of hearings in October.

While 14 other District Court judges share the more than 200 Guantanamo habeas cases now on file, it appears that the 24 cases in Leon’s court are moving on the fastest track. The judge said, at a four-hour hearing Thursday, that he “remains committed to conducting hearings in these cases — all 24 — between now and Christmas.” Decisions on whether any detainee wins release could come soon after that. ... [various procedural rulings are discussed in the paragraphs following]

http://www.scotusblog.com/wp/detaine...s-start-oct-6/

Nice to see a judge take control of the situation. Based on previous rulings, Judge Leon is not likely to become loopy, and seems aware of practicalities:

from above
.... he said he would not go too far to intrude on operations of the Navy facility there: “It’s a military base,” he said, “it’s not Vegas.”

[jmm99]

This brings in another aspect of "war crimes".

Detainee torture issue taken to Court
Friday, August 22nd, 2008 5:29 pm | Lyle Denniston.
.....
UPDATE Monday a.m. The case of Rasul v. Myers has now been assigned docket number 08-235.)

In the first move to put claims of torture of Guantanamo detainees before the Supreme Court, lawyers for four Britons formerly held at the Navy prison in Cuba on Friday asked the Justices to overturn a federal appeals court ruling that they had no right to sue Pentagon officials and military officers over the issue.....

The case would give the Justices a chance to rule on whether Guantanamo detainees have any rights under the Constitution beyond the right to challenge their detention in habeas cases, and whether they have any rights under U.S. laws.

The D.C. Circuit Court last Jan. 11 rejected all of the claims of abuse and arbitrary imprisonment, thus scuttling the case. With no dissents noted, the Circuit Court refused on March 26 to rehear the case en banc. The petition in the Supreme Court was filed after attorneys obtained an extension to do so by Friday. ...

The new appeal asks the Justices to rule on three issues:

1. Do the former detainees have a right to sue for “religious abuse and humilation” under the Religious Freedom Restoration Act.? (The Circuit Court found the detainees were not “persons” covered by the Act.)

2. Does the Constitution provide U.S. captives with a constitutional right not to be tortured – or, if there is such a right, was it not established at the time of the mistreatment claimed in this case and thus U.S. offiicials have immunity to lawsuit? (The Circuit Court ruled that detainees have no constitutional rights.)

3. Did the Defense Secretary and senior military officers have the authority to order torture, as coming within the range of their official duties? (The Circuit Court said that any such mistreatment was incidental to officials’ duty in ordering that detainees be interrogated.)

The appeal notes that the Circuit Court had found that “Guantanamo detainees lack constitutioinal rights because they are aliens without property or presence in the United States.” That conclusion, the petition points out, was overturned by the Supreme Court on June 12 in Boumediene v. Bush, recognizing a constitutional right of habeas.

http://www.scotusblog.com/wp/detaine...aken-to-court/

The petition in Rasul, et al., v. Myers, et al., can be found here.

http://www.scotusblog.com/wp/wp-cont...on-8-22-08.pdf

The Circuit Court panel’s decision can be found here.

http://pacer.cadc.uscourts.gov/docs/...1/06-5209a.pdf

A post on SCOTUSblog discussing the Circuit Court panel decision can be read here.

http://www.scotusblog.com/wp/detaine...torture-abuse/

A petition filed does not mean petition granted - most are denied by SCOTUS; and a constitutional right of habeas does not necessarily mean that all constitutional right follow.

Sooner or later SCOTUS will have deal with the issue of whether some constitutional rights belong only to US citizens (cf., St. Paul); that others extend to US subjects as well; and that still others extend to aliens as well (as in the case of habeas).

One does well to remember that this claim (and others) are solely based on the allegations in a complaint - with at most, some affidavit evidence. Hence, they present the worst case scenario against the defendants. A full-blown trial might well result in many or all of the allegations being found lacking.

The same caution applies to the government's charge sheets in DTA and MCA cases. The actual proofs may fail completely (Parhat) or partially (Hamdan).

[jmm99]

There are presently three tracks that detainee cases are following:

1. Proceedings before Combatant Status Review Tribunals (CSRTs) to determine enemy combatant status under the DTA, with referral to Military Commission trials (if charge sheets are filed); and, in any case, review by the DC Court of Appeals (e.g., Parhat).

2. Proceedings before Military Commissions under the MCA, with a different path of appellate review. In Hamdan, Judge Allred ignored the CSRT determination and decided Hamdan's enemy combatant status de novo.

3. Habeas proceedings in DC Disrtict Court. Some cases are concurrent in all three tracks.

Denniston's analysis below applies to the first set of proceedings (DTA):

Circuit Court holds firm on DTA review
Monday, August 25th, 2008 10:40 am | Lyle Denniston
....
The D.C. Circuit Court, turning aside a Justice Department plea to cut back sharply on its review of military decisions to detain individuals at Guantanamo Bay, has put its tough review regime back into effect. In a brief order on Friday (found here), the Court without explanation reinstated its pair of decisions in Bismullah v. Gates (Circuit docket 06-1197). That order thus implied that the Circuit Court did not believe the Supreme Court had undercut the prior Circuit rulings, as the Justice Department had contended.

The Circuit Court’s two Bismullah decisions, on July 20 and Oct. 23 of last year, required the Pentagon and other government agencies to produce a potentially wide array of information about detainees, to make the system of civilian court review work as the panel thought Congress intended in the Detainee Treatment Act of 2005. It was not enough, the panel declared, to have before it only the information that the Pentagon had actually considered — in proceedings before Combatanta Status Review Tribunals. This kind of broad review, the Justice Department contended, threatened harm to national security.
....
Instead, in its order on Friday, the Circuit Court panel, splitting 2-1, simply reinstated its prior rulings, thus restoring them as fully binding mandates on how the DTA process would continue to operate. Circuit Judges Douglas H. Ginsburg and Judith W. Rogers signed the order; Circuit Judge Karen LeCraft Henderson dissented.

The order, however, said nothing about a separate motion the Justice Department has made: that all of the scores of DTA cases be put on hold while the habeas cases proceed in District Court. Presumably, the panel will act on that question separately.

http://www.scotusblog.com/wp/circuit...on-dta-review/

The order is here.

http://www.scotusblog.com/wp/wp-cont...er-8-22-08.pdf

A prior SCOTUSblog discussion is here.

http://www.scotusblog.com/wp/analysi...a-dead-letter/

[jmm99]

The name below in part 2 will be familiar to most.

---------------------------------------
The first part deals with the question of Federal judicial control over the MCA system before a final judgment by a MCA military commission. The detainees (minor players) in that case have not been charged. The case does have possible implications for the MCA process.

Circuit Court holds firm on DTA review
Monday, August 25th, 2008 10:40 am | Lyle Denniston
....
UPDATE 3:30 p.m. There have been other developments in detainees’ cases; they are discussed in the continuation of the post below.
.....
1. A hearing scheduled in U.S. District Court Tuesday morning could provide a major test of whether Congress has taken away from the federal courts any authority to oversee the war crimes trial system before there are final verdicts. Thomas F. Hogan, a senior District judge who is coordinating detainees’ habeas cases in District Court, will hold a hearing at 11 a.m. on a plea by attorneys for two Guantanamo prisoners to prevent military prosecutors from meeting with the captives without their lawyers’ consent.

http://www.scotusblog.com/wp/circuit...on-dta-review/

In an ordinary criminal case, this one would be a no-brainer once the defendant lawyers-up. As noted above, the Federal courts are being forced to deal with the issue of who (measured by status) is entitled to certain constitutional rights.

Detainees' motion brief here.

http://www.scotusblog.com/wp/wp-cont...ion-7-2-08.pdf

Government's brief here.

http://www.scotusblog.com/wp/wp-cont...ari-7-8-08.pdf

Detainees' reply here.

http://www.scotusblog.com/wp/wp-cont...ly-7-10-08.pdf

Note that, if the detainees themselves had a trial pending before a MCA commission, the Federal judge would have a simple answer: don't ask me; ask your military judge for a protective order.

--------------------------------
From the same source as above, we have the five accused man-eaters coming to bat:

2. In a new development affecting the war crimes prosecution of five individuals accused of taking part in the 9/11 attacks — including alleged mastermind Khalid Sheikh Mohammed, defense lawyers asked for added time to file legal motions. Under a present schedule, such motions would be due on Friday of this week. The attorneys asked that the deadline be put off until Nov. 25, contending that the cases that could lead to the death penalty for each of the five accused are so complex — and lawyers’ access to the clients is so restricted — that counsel cannot mount an adequate defense in the time available.

KSM's motion (3+MB) is here.

http://www.aclu.org/pdfs/safefree/us...nforrelief.pdf

[jmm99]

This is not Mr. Parhat himself, but the rest of the Uighurs

Analysis: The meaning of Munaf
Tuesday, August 26th, 2008 12:54 pm | Lyle Denniston
....
Analysis

When the Supreme Court on June 12 found a new constitutional right for Guantanamo Bay detainees, another decision on the same day had little chance of being widely noticed even though it, too, involved detainees’ rights. That ruling [Manuf], in a pair of consolidated cases, focused on prisoners the U.S. military holds in Iraq, not at the U.S. Navy prison compound on the island of Cuba.
....
The point [meaning of Munaf] is well illustrated by two legal briefs, both filed last Thursday in the D.C. Circuit Court, in a series of cases (led by Kiyemba, et al., v. Bush, et al., Circuit docket 05-5487). These cases involve nine Guantanamo detainees — all members of a Chinese Muslim minority (the Uighurs) that has for years suffered persecution in China; these nine were captured elsewhere after they had relocated. ....
......
The government has 167 appeals in the Circuit Court in other cases awaiting the outcome of the Kiyemba litigation, and detainees have three other such appeals now pending. All of them turn primarily upon a single issue: do federal judges have any authority to issue orders of any kind to limit or delay the Defense and State Departments from sending a detainee to another country, after the Pentagon decides not to keep an individual confined at Guantanamo? It is a question that could touch on major constitutional issues, as well as on the meaning of federal laws.

http://www.scotusblog.com/wp/analysi...ning-of-munaf/

The brief for the Uighur detainees is here.

http://www.scotusblog.com/wp/wp-cont...ef-8-21-08.pdf

The government's brief is here.

http://www.scotusblog.com/wp/wp-cont...ba-8-21-08.pdf

[jmm99]

This decision by Judge Leon favors the government (and also accords with the DTA and MCA). It is the same standard applied by Judge Allred in Hamdan.

An easier standard for detention
Wednesday, August 27th, 2008 3:10 pm | Lyle Denniston ...
......
NOTE: In a hearing Wednesday on procedural issues in detainee cases in his Court, U.S. District Judge Richard J. Leon expressed concern about the need to have most of the hearings in those cases behind closed doors, because of the use of classified evidence. .... [AP link below]
.....
A federal judge who is moving ahead rapidly to implement a Supreme Court decision and decide whether the Pentagon may continue to hold detainees at Guantanamo Bay decided on Wednesday to require only the lowest level of proof to justify further captivity.

In a case management order that applies to the 24 habeas cases before him, U.S. District Judge Richard J. Leon ruled that it would be up to the government to prove “the lawfulness of detention” case by case, but need do so only by a “preponderance of the evidence.”
......
Judge Leon left himself some room to second-guess the government, not only on the weight of its evidence to support detention, but also on the core issue of what is a “lawful” detention. Each government report offering reasons for an individual’s captivity, the judge said, must “set forth the government's legal basis for detaining” that captive. If it offers evidence that he is an “enemy combatant,” it “must provide the definition of enemy combatant upon which it relies.” .....

http://www.scotusblog.com/wp/an-easi...for-detention/

The case management order is here.

http://www.scotusblog.com/wp/wp-cont...er-8-27-08.pdf

AP news account of the hearing.

http://hosted.ap.org/dynamic/stories...MPLATE=DEFAULT

[jmm99]

The government is being forced to take action - one way or the other - on the DC Circuit's restoration of its discovery orders in the "Bismullah" cases. In an ordinary criminal case, all this would be a no-brainer under the Brady doctrine. Here, it becomes a Supreme Court case - well, not quite yet.

U.S. to try again to curb DTA review
Wednesday, August 27th, 2008 4:02 pm | Lyle Denniston ....
....
UPDATE Friday afternoon
In a move sure to draw government opposition, lawyers for seven Guantanamo Bay detainees asked the D.C. Circuit Court on Friday to order the Justice Department and Pentagon to produce within ten days the complete files, including any secret data, that it has about those individuals. In a motion to compel, the lawyers relied upon the Circuit Court’s reinstated Bismullah v. Gates decisions of last year. In fact, the motion was filed in the Bismullah case itself (Circuit docket 06-1197), and six other appeals by detainees, all challenging their captivity under the Detainee Treatment Act of 2005. The government, the motion argued, has said it was busy compiling these records, and thus should be able to produce them quickly — initially, in classified form, in order to speed access to them for detainees’ lawyers. The Justice Department is likely to oppose this new request, as it goes forward with efforts to undo the Bismullah ruling .....
....
The Justice Department is discussing a return to the Supreme Court, to ask it to curb the authority of a federal appeals court to engage in a wide-ranging review of military decisions to detain prisoners at Guantanamo Bay. The plans, reportedly conveyed to attorneys for detainees, remain subject to approval by the U.S. Solicitor General, it is understood. An initial attempt may be made to get the lower court, the D.C. Circuit Court, to react first.

Under discussion are ways to block, and ultimately to get overturned, the D.C. Circuit order that has revived its broad review mandate. ....

http://www.scotusblog.com/wp/us-to-t...rb-dta-review/

The detainees' motion to compel discovery is here

http://www.scotusblog.com/wp/wp-cont...el-8-29-08.pdf

[jmm99]

This guy is earning his pay - and making the lawyers work. I love it.

UPDATE: Bismullah effect spreading?
Friday, August 29th, 2008 1:51 pm | Lyle Denniston.....
.....
UPDATE
Even as the Justice Department makes plans to try to get higher courts to overturn a broad judicial mandate to produce what it knows about Guantanamo Bay detainees (discussed in the post just below, updated Friday), it is now facing the prospect that the obligation may also extend to detainees’ cases in U.S. District Court. In one of the leading groups of habeas cases, U.S. District Judge Richad J. Leon on Thursday called for new briefs on this controversy.
.....
On Wednesday, lawyers for six detainees — the same six that were involved in the Supreme Court’s ruling June 12 on detainees’ habeas rights (Boumediene v. Bush) — asked Judge Leon to use the Bismullah decision as a basis for ordering the government “to search for and produce” all information that might favor the detainees’ challlenge to captivity — and perhaps “all information” about detainees — for review in habeas proceedings. .....
....
Judge Leon reacted on Thursday, telling each side it could file a new brief on the issue if it wished, with any such brief due next Wednesday. [... but judge, it's Labor Day Weekend ... So, labor ...]
.....
Judge Leon has already reacted somewhat cautiously to a request of detainees’ lawyers to force the government to seek out information that would help the detainees’ cause. In his “case management order” this week, the judge said the government would be obliged to produce information that helps detainees only if it is contained in the materials government lawyers are preparing to submit in habeas cases.

It is not clear, however, that Judge Leon, at the time he issued that order on Thursday, had considered the detainees’ counsel’s new plea — filed the day before — to expand the government disclosure obligation under Bismullah.

http://www.scotusblog.com/wp/update-...ect-spreading/

The detainees' “notice of subsequent authority” is here.

http://www.scotusblog.com/wp/wp-cont...ne-8-26-08.pdf

[jmm99]

This is a confusing news item - or is it that DOJ and its bosses simply do not know what to do. I expect there is some political spin here; but it may indicate that the DOJ system is broken. Draw your own conclusions. Next week will bring some more developments - one can fairly infer.

New DTA, habeas troubles
Friday, August 29th, 2008 10:36 pm | Lyle Denniston.....
.....
The Justice Department, frustrated in its ability to get free of one level of court review of Guantanamo Bay detainee cases, and unable at the other level to keep to is own schedule for turning out reports to justify detention, has taken two significant steps to try to cope. It has vowed to shut down its part in the D.C. Circuit Court’s review of detainee challenges under the Detainee Treatment Act of 2005, and it has formally asked for more time to file in District Court its answers to challenges pending there under the Supreme Court’s Boumediene v. Bush decision.

These developments emerged as top Justice Department officials, joined by Pentagon and intelligence officials, vowed Friday to continue to try to help the courts process some 250 District Court habeas cases that federal judges have insisted on resolving as soon as possible. Officials have made it clear that they consider those cases to have the most claim on the government’s time and resources, and equally clear that they will do no more than they are actually compelled to do on the DTA cases in the Circuit Court.

The Supreme Court, in Boumediene, stressed the importance of moving rapidly with the long-pending habeas cases, and said the detainees did not have to attempt first to ge the Circuit Court to act on their DTA appeals. But the Court also said that the DTA process would remain “intact” and it did not prevent detainees’ lawyers from pursuing that routine, if they chose — as a number have now done.
....
Justice Department lawyers, in a variety of ways in court and out, have made efforts to put the DTA process on hold so that all government agencies involved could focus on the habeas cases. After detainees’ lawyers refused to go along, the Department hardened its position, and now will not supply any information demanded by detainees’ counsel for use in the DTA process. (A Department lawyer outlined that view in this document.) This has set up a tug-of-war in the Circuit Court, and it is not clear when the Circuit Court will try to sort it out.
.....
Meanwhile, on Friday, in a series of filings in District Court, the Justice Department told Senior Judge Thomas F. Hogan that the government was unable to meet a Friday deadline for producing 50 responses to detainees’ habeas challenges. That was a schedule Department lawyers suggested, and Judge Hogan then embraced. ....

http://www.scotusblog.com/wp/new-dta-habeas-troubles/

The bottom line government position is this:

We will not be providing any further record materials at this time. As you know, our motion to hold the entire DTA case in abeyance (including any obligation to produce any record material) is still pending. The pendency of that motion stays any obligation to provide any record material to you. Moreover, we are examining whether to seek further review of the panel's ruling in Bismullah and may seek to overturn the latest order.

Finally, I would note that, under Bismullah II, the record at issue is the historic "government information" actually reviewed by the recorder. The Bismullah II Court recognized that, for good reason, the government may not be able to identify those materials. See Bismullah v. Gates, 503 F.3d 137, 141 (D.C. Cir. 2007) (quoting the Government filing, "[a]t the time, Recorders had no reason to believe that DoD would be required to produce (or explain post hoc) what was not provided to the Tribunal"); ibid. ("We note in the Government's defense that CSRTs made hundreds of status determinations, including those under review in the present cases * * * without knowing * * * the scope and nature of judicial review"). Accordingly, the panel expressly held that the Government could elect not to file the record at all and instead remand the case to the agency. Ibid. Our prior court filings explain that the Government may pursue the remand option if the Bismullah decision is not overturned.

Given all of these factors, we will not be providing you the "government information" or any further record material at this time.

The above document is mentioned in the 2nd to the last paragraph of Lyle's article above.

Various other government position papers are here.

http://www.scotusblog.com/wp/wp-cont...ef-8-29-08.pdf
http://www.scotusblog.com/wp/wp-cont...ns-8-29-08.pdf
http://www.scotusblog.com/wp/wp-cont...cl-8-29-08.pdf
http://www.scotusblog.com/wp/wp-cont...cl-8-29-08.pdf

from Gen. Hayden's declaration
19. The CIA did not receive the first draft factual returns [from DOJ] until 12 August 2008, and received the last batch of factual returns [from DOJ] as recently as 25 August 2008. Nevertheless, the CIA managed to complete its review of a significant number of returns by the 29 August 2008 deadline.

(IMO) The only people who are looking good here are some of the judges who took the bull by the horns and did what they are paid to do - military judge Allred and Federal judge Leon being two examples, in my book.

[selil]

So, do I see a couple of things happening?

1) The rather strange expectation that Guatanamo would keep prisoners from accessing the United States courts system (an interesting statement by itself) is being systematically dismantled?

2) Is the inaction or stagnation evolving into a cascading failure of the prosecution or was that a foregone conclusion built upon the rules of engagement?

2.b) Is it possible that the administrative/military pseudo judicial process has resulted in some enthusiasm by judges to dismantle that process?

[jmm99]

and questions that should not be answered too quickly. In short, I need a bit of time to think about them - and to look at the cases I've downloaded and referenced. Might also look at a book or two. We've been here before - bout 140 years ago as I reckon it.

Will get back with a memo. Maybe tomorrow. I posted too much yesterday, here and on another discussion board. My eyes need a rest.

Cheers.

Mike

[jmm99]

from Selil
1) The rather strange expectation that Guatanamo would keep prisoners from accessing the United States courts system (an interesting statement by itself) is being systematically dismantled?

The answer to this question is a qualified "no"; in part, because the question contains a flawed factual premise. Here is my explanation.

The DTA and MCA (as they are being applied) do not prohibit ultimate access to an Article III Federal court; but they do limit that access to specific courts and time frames. Because the DTA and MCA have different purposes, they have to be analysed separately as they stand (parts I and II) - and then analysed in light of the separate lines of habeas cases that are in process.

I will use some comparisons from domestic law enforcement here, which though not totally on point have been helpful to me in removing some of the mystery from these statutes and procedures. These cases, of course, involve further complications because of classified evidence and the interplay of international law and domestic law. However, our judicial system has a long history of dealing with classified evidence and protecting national security interests.

It also (because of our federal system) has a long history of determining choices of applicable law where more than one set of laws is involved - the law course known in my student days as Conflict of Laws; and of determining the appropriate intereplay between the Federal courts, the state courts and administrative courts - the law courses known in my student days as Federal Courts and the Federal System, and Review of Administrative Decisions.

The detainee cases, for the most part, factually involve situations which in domestic law enforcement fall under the generalized heading of unlawful possession, and sometimes use, of firearms and explosive devices (under the latter heading, murder, attempted murder, etc.), where the detainee is alleged to be either a principal or accomplice. They also may involve elements of run of the mill criminal conspiracies (X was part of a conspiracy with A, B and C to supply arms to the Taliban); and of broader conspiracies (X was a member of AQ and was involved in its A, B, C, D operations - e.g., KSM). The latter type of charge is more akin to a RICO prosecution.

I am dividing this reply in series of posts; otherwise, it will become unmanageable in the editor.

I have also quoted extensively from the statutes - that way you can decide what the law is & not what I say it is.

[jmm99]

A. The Statutory Framework

The DTA procedures are laid out in the 2006 DTA, which was part of the Katrina Relief Act, Public Law 109-148, 109th Congress. Like most statutes, it provides a construction clause, which in this situation could be something of a de-construction clause:

SEC. 1002
(c) Construction.--Nothing in this section shall be construed to affect the rights under the United States Constitution of any person in the custody or under the physical jurisdiction of the United States.

but also adds, in its amendment of 28 USC 2241, the folowing:

(f) Construction.--Nothing in this section shall be construed to confer any constitutional right on an alien detained as an enemy combatant outside the United States.

Thus, the DTA act was intended to be "constitutional rights neutral" - nothing given, nothing taken away.

The act goes on, in a manner not that foreign to administrative review processes, to provide the DoD with authority to establish rules and regulation for the administrative adjudicatory bodies:

SEC. 1005
(a) Submittal of Procedures for Status Review of Detainees at Guantanamo Bay, Cuba, and in Afghanistan and Iraq.--

(1) In general.--Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the Committee on Armed Services and the Committee on the Judiciary of the Senate and the Committee on Armed Services and the Committee on the Judiciary of the House of Representatives a report setting forth--

(A) the procedures of the Combatant Status Review Tribunals and the Administrative Review Boards established by direction of the Secretary of Defense that are in operation at Guantanamo Bay, Cuba, for determining the status of the detainees held at Guantanamo Bay or to provide an annual review to determine the need to continue to detain an alien who is a detainee; and

(B) the procedures in operation in Afghanistan and Iraq for a determination of the status of aliens detained in the custody or under the physical control of the Department of Defense in those countries.

The act (also in SEC 1005) also provides for review within the DoD by a designated official:

(2) Designated civilian official.--The procedures submitted to Congress pursuant to paragraph (1)(A) shall ensure that the official of the Department of Defense who is designated by the President or Secretary of Defense to be the final review authority within the Department of Defense with respect to decisions of any such tribunal or board (referred to as the ``Designated Civilian Official'') shall be a civilian officer of the Department of Defense holding an office to which appointments are required by law to be made by the President, by and with the advice and consent of the Senate.

Finally, the act in SEC 2005(e)(2) provides for review of DTA determinations by the DC Circuit Court of Appeals, giving some leeway for interpretation.

(e) Judicial Review of Detention of Enemy Combatants.--
.....
(2) Review of decisions of combatant status review tribunals of propriety of detention.--

(A) In general.--Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant.

(B) Limitation on claims.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to claims brought by or on behalf of an alien--

(i) who is, at the time a request for review by such court is filed, detained by the Department of Defense at Guantanamo Bay, Cuba; and

(ii) for whom a Combatant Status Review Tribunal has been conducted, pursuant to applicable procedures specified by the Secretary of Defense.

(C) Scope of review.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of--

(i) whether the status determination of the Combatant Status Review Tribunal with regard to such alien was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor of the Government's evidence); and

(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution
and laws of the United States.

(D) Termination on release from custody.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit with respect to the claims of an alien under this paragraph shall cease upon the release of such alien from the custody of the Department of Defense.

We can summarize the DTA procedure fairly simply.

1. The sole factual and legal issue (one of status) is whether the alian detainee is an "enemy combatant". I am leaving aside for now the substantive issues surrounding the meaning of that term.

2. That determination is made by a Combatant Status Review Tribunal (CSRT), subject to review by an Administrative Review Board (ARB) and, within DoD, by the Designated Civilian Official (DCO).

3. Finally, review by a Article III court is vested in the United States Court of Appeals for the District of Columbia Circuit.

On its face, there seems to me no question that the DTA procedure, if properly applied, would comport with fundamental due process rights under the US Constitution (which is the critical question); and also with the same concepts under the international and comparative laws that I believe are relevant. It is different from what we see in our domestic criminal justice system - but different does not necessarily mean unconstitutional.

[jmm99]

B. The Paperwork at Issue

The DTA is of general application to all alien detainees, whether at Gitmo or in Iraq or Afghanistan. It represents an initial stage in the process (and for those detainees not charged under the MCA, the final stage). The closest domestic law enforcement analogy is the arrest and initial incarceration phase (police investigation, arrest warrant and affidavit before a magistrate, jail booking).

So, the DTA paperwork should, if properly done, reflect similar features. Many who are reading this are very familiar with the domestic law paperwork, so I will not dwell on that. Police investigative reports (like everything else) may be good, bad or indifferent. My own experience has generally been positive - they nail down the facts of the case, the witnesses, the crime scene, accused's admissions, technical evidence, etc. Of course, certain aspects have to be developed as one moves to the charging stage and into preliminary and trial stages - in MI, by complaint, preliminary examination (usually a bind-over), information, pre-trial motion practice and trial (followed by conviction and hanging - not really, but just checking to see if you are still awake).

For those familiar with domestic law enforcement, I think you will find - if you look at the actual DTA paperwork - that it is not up to the standards set by our police agencies. That is my opinion after after having downloaded (from the DoD webpages) and reviewed some of it. That is rather surprising since the government has had years to prepare this preliminary paperwork.

The reversal in Parhat of the CSRT determination (total lack of evidence), and Judge Allred's felt need to re-determine de novo Hamdan's status as an enemy combatant (he found that status based on the evidence he required to be presented), support my opinion about DTA paperwork.

The skeptic in me sends up a red flag - does the government really have evidence against many of these detainees that would meet the probable cause test which we are so used to in obtaining an arrest warrant - or, in making an arrest without warrant ?

That is, of course, the question being asked by the detainees' attorneys in the "Bismullah" discovery cases. That there should be some discovery of the evidence used to make the CSRT determination seems to me to be a no-brainer - including exculpatory evidence if it exists. The government seems to think differently. The issue is whether the Brady discovery doctrine (Brady v Maryland, from the early 60's) is a fundamental due process rule, since its purpose is to guard against convicting an innocent person.

We could live without Miranda and many of the various search and seizure rules requiring exclusion of credible evidence because of technical errors (the constable has blundered, so the guilty must go free). In fact, we lived under the "totality of circumstances" exclusionary concept for almost 200 years without losing the integrity of our judicial system. The Brady doctrine (applied with some common sense) is of a different order of magnitude.

The "Bismullah" requests also involve requests for discovery of relevant evidence not used in the CSRT determinations - which the government also opposes.

It is interesting that, in SEC 1005(a) of the DTA, we do find a "new evidence" requirement:

(3) Consideration of new evidence.--The procedures submitted under paragraph (1)(A) shall provide for periodic review of any new evidence that may become available relating to the enemy combatant status of a detainee.

That provision is one factor in the "Bismullah" requests for discovery of "government information"

[jmm99]

I am not going to dwell on the MCA and its commission procedure. MCA is very similar to the courts martial process (albeit with some shortcuts). We have seen one complete trial (Hamdan) under that statute. The military has handled that process well, in my opinion. So, I will address only the provisions for review by Article III courts.

The DTA act in SEC 2005(e)(2) provides for review of MCA commission adjudications by the DC Circuit Court of Appeals, again giving some leeway for interpetation.

(e) Judicial Review of Detention of Enemy Combatants.--
.....
(3) Review of final decisions of military commissions.--

(A) In general.--Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision rendered pursuant to Military Commission Order No. 1, dated August 31, 2005 (or any successor military order).

(B) Grant of review.--Review under this paragraph--

(i) with respect to a capital case or a case in which the alien was sentenced to a term of imprisonment of 10 years or more, shall be as of right; or

(ii) with respect to any other case, shall be at the discretion of the United States Court of Appeals for the District of Columbia Circuit.

(C) Limitation on appeals.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to an appeal brought by or on behalf of an alien--

(i) who was, at the time of the proceedings pursuant to the military order referred to in subparagraph (A), detained by the Department of Defense at Guantanamo Bay, Cuba; and

(ii) for whom a final decision has been rendered pursuant to such military order.

(D) Scope of review.--The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on an appeal of a final decision with respect to an alien under this paragraph shall be limited to the consideration of--

(i) whether the final decision was consistent with the standards and procedures specified in the military order referred to in subparagraph (A); and

(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States.

The MCA also provides for review of military commission adjudications, in two stages. First, we have the Court of Military Commission Review:

§ 950f. Review by Court of Military Commission Review

(a) ESTABLISHMENT.—The Secretary of Defense shall establish a Court of Military Commission Review which shall be composed of one or more panels, and each such panel shall be composed of not less than three appellate military judges. For the purpose of reviewing military commission decisions under this chapter, the court may sit in panels or as a whole in accordance with rules prescribed by the Secretary.

(b) APPELLATE MILITARY JUDGES.—The Secretary shall assign appellate military judges to a Court of Military Commission Review. Each appellate military judge shall meet the qualifications for military judges prescribed by section 948j(b) of this title or shall be a civilian with comparable qualifications. No person may be serve as an appellate military judge in any case in which that person acted as a military judge, counsel, or reviewing official.

(c) CASES TO BE REVIEWED.—The Court of Military Commission Review, in accordance with procedures prescribed under regulations of the Secretary, shall review the record in each case that is referred to the Court by the convening authority under section 950c of this title with respect to any matter of law raised by the accused.

(d) SCOPE OF REVIEW.—In a case reviewed by the Court of Military Commission Review under this section, the Court may act only with respect to matters of law.

From there, one moves to the DC Circuit and the Supreme Court:

§ 950g. Review by the United States Court of Appeals for the District of Columbia Circuit and the Supreme Court

(a) EXCLUSIVE APPELLATE JURISDICTION.—(1)(A) Except as provided in subparagraph (B), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission (as approved by the convening authority) under this chapter.

(B) The Court of Appeals may not review the final judgment until all other appeals under this chapter have been waived or exhausted.

(2) A petition for review must be filed by the accused in the Court of Appeals not later than 20 days after the date on which—

(A) written notice of the final decision of the Court of Military Commission Review is served on the accused or on defense counsel; or

(B) the accused submits, in the form prescribed by section 950c of this title, a written notice waiving the right of the accused to review by the Court of Military Commission Review under section 950f of this title.

(b) STANDARD FOR REVIEW.—In a case reviewed by it under this section, the Court of Appeals may act only with respect to matters of law.

(c) SCOPE OF REVIEW.—The jurisdiction of the Court of Appeals on an appeal under subsection (a) shall be limited to the consideration of—

(1) whether the final decision was consistent with the standards and procedures specified in this chapter; and

(2) to the extent applicable, the Constitution and the laws of the United States.

(d) SUPREME COURT.—The Supreme Court may review by writ of certiorari the final judgment of the Court of Appeals pursuant to section 1257 of title 28.

So, the DTA and MCA (as they are being applied) do not prohibit ultimate access to an Article III Federal court; but they do limit that access to specific courts and time frames.

That BTW, is not much different from the situation where a state court defendant (regardless of his Federal law claims) must proceed through the state court system - in MI, District Court, Circuit Court, Court of Appeals, Supreme Court - before seeking review by SCOTUS (which is rarely granted).

The state defendant with Federal law claims may also seek habeas relief in Federal District Court, but that relief is limited in both scope and time frame.

It is in the area of habeas review that the DTA and MCA limitations have been dismantled in part.

[selil]

OK, so here is my question based on the above. It would seem that there is fundamental expectation that Guatanamo is considered to NOT be United States soil and the respective borders of the United States for purposes of jurisdiction are expected to be the International borders. However, in several cases the embassies and bases have been used to create cases that were required to be on United States soil even if in a foreign land (for example possession of illegal substances, sex crimes (not covered by the host land, and DMCA type violations). So doesn't it seem peculiar to see it being used subjectively as a convenience "protocol"?

If you are ever in da region (South East Chicago) I'll buy you a beverage or nine. Now you have me wanting to attend law school when I finish my PhD.

[davidbfpo]

On 22nd August 2008 The Guardian reported on a high court judgement on a Guantanamo Bay prisoner, who is awaiting trial and I select two key points:

The judgment contains two particularly stinging passages. The judges said Witness B worked with the US "to the extent of making it clear to [Mohamed] that the United Kingdom government would not help [him] unless he cooperated fully with the United States authorities". They added: "The relationship of the United Kingdom government to the United States authorities in connection with [Mohamed] was far beyond that of a bystander or witness to the alleged wrongdoing."

The weblink is: http://www.guardian.co.uk/uk/2008/au...ity.guantanamo

The court judgement, 75 pages: http://image.guardian.co.uk/sys-file...full210808.pdf

davidbfpo