Crimes, War Crimes and the War on Terror

[jmm99]

All bios (snipped here) are from the Federal Judicial Center. Use the search function at the following page to get the full bios.

http://www.fjc.gov/public/home.nsf/hisj

-----------------------------------------
Old Parhat Panel: Circuit Judges David B. Sentelle (Chief Circuit Judge), Merrick B. Garland and Thomas B. Griffith

Sentelle, David Bryan
Born 1943 in Canton, NC

Federal Judicial Service:

Judge, U. S. District Court, Western District of North Carolina
Nominated by Ronald Reagan on July 25, 1985, to a seat vacated by Woodrow W. Jones; Confirmed by the Senate on October 16, 1985, and received commission on October 17, 1985. Service terminated on October 19, 1987, due to appointment to another judicial position.

Judge, U. S. Court of Appeals for District of Columbia Circuit
Nominated by Ronald Reagan on February 2, 1987, to a seat vacated by Antonin Scalia; Confirmed by the Senate on September 9, 1987, and received commission on September 11, 1987. Served as chief judge, 2008-present.

Garland, Merrick B.
Born 1952 in Chicago, IL

Federal Judicial Service:

Judge, U. S. Court of Appeals for District of Columbia Circuit
Nominated by William J. Clinton on January 7, 1997, to a seat vacated by Abner Joseph Mikva; Confirmed by the Senate on March 19, 1997, and received commission on March 20, 1997.

Griffith, Thomas Beall
Born 1954 in Yokohama, Japan

Federal Judicial Service:

Judge, U. S. Court of Appeals for District of Columbia Circuit
Nominated by George W. Bush on February 14, 2005, to a seat vacated by Patricia M. Wald; Confirmed by the Senate on June 14, 2005, and received commission on June 29, 2005.

------------------------------------------
New Parhat Panel: Circuit Judges Karen LeCraft Henderson, A. Raymond Randolph and Judith W. Rogers

Henderson, Karen LeCraft
Born 1944 in Oberlin, OH

Federal Judicial Service:

Judge, U. S. District Court, District of South Carolina
Nominated by Ronald Reagan on June 3, 1986, to a seat vacated by William W. Wilkins, Jr.; Confirmed by the Senate on June 13, 1986, and received commission on June 16, 1986. Service terminated on July 11, 1990, due to appointment to another judicial position.

Judge, U. S. Court of Appeals for District of Columbia Circuit
Nominated by George H.W. Bush on May 8, 1990, to a seat vacated by Kenneth W. Starr; Confirmed by the Senate on June 28, 1990, and received commission on July 5, 1990.

Randolph, Arthur Raymond
Born 1943 in Riverside, NJ

Federal Judicial Service:

Judge, U. S. Court of Appeals for District of Columbia Circuit
Nominated by George H.W. Bush on May 8, 1990, to a seat vacated by Spottswood W. Robinson, III; Confirmed by the Senate on July 13, 1990, and received commission on July 16, 1990.

Rogers, Judith Ann Wilson
Born 1939 in New York, NY

Federal Judicial Service:

Judge, U. S. Court of Appeals for District of Columbia Circuit
Nominated by William J. Clinton on November 17, 1993, to a seat vacated by Clarence Thomas; Confirmed by the Senate on March 10, 1994, and received commission on March 11, 1994.

[120mm]

Thanks for this running set of updates. I know not many have commented on this thread, but it has rapidly become one of my "must reads" each morning.

[selil]

Thanks for this running set of updates. I know not many have commented on this thread, but it has rapidly become one of my "must reads" each morning.

What he said. I'm fascinated.

[jmm99]

I am gratified. Ultimate thanks belong to Lyle Denniston and the others at SCOTUSblog, who are following these and other cases like hawks. Anyway, we (SWC) beat AP by about 8 hours, since this is their lead this morning.

By HOPE YEN, Associated Press Writer
Thu Oct 9, 8:14 AM ET

WASHINGTON - A group of Chinese Muslims set to be freed into the U.S. this week from Guantanamo Bay found their freedom stymied yet again after a simple government plea: What's a couple more weeks or so in jail after nearly seven years?

That in essence was the Bush administration's argument to a federal appeals court in a 19-page emergency request that maintained there would be only "minimal harms" if the detainees were to stay at Guantanamo a while longer.

http://news.yahoo.com/s/ap/20081009/...nese_detainees

-------------------
The DC Circuit's decision yesterday gave me some pause - thus, the bios for the judges on the old and new Parhat panels. To me, there is no substantial political (R vs D) difference between the two panels. So, I have excluded that as an explanation.

Why did it give me pause ? If this were a normal habeas proceeding, the hearings set by Judge Urbina would most likely have gone forward (the law on that is well-presented in the detainees' motion and brief). Moreover, the DC Circuit had options beyond simply granting the DoJ's emergency stay.

For example, it could have allowed the hearings to proceed, but subject to conditions that the USMS take custody and house the Uighurs throughout the course of the proceedings; that the terms and conditions of their release be finally determined; and that, before that order be executed, the DoJ have an adequate time period to renew its stay motion pending its appeal from the final release order.

In that way, the DC Circuit would have a final release order, with a full factual record including witness testimony, for its review on the appeal. It could then decide whether to allow release during appeal (the norm) or to stay release (the exception). That is the normal course in Federal appeals, where interlocutory appeals are not generally favored.

So, why the terse entry of a stay ? The President has made it very clear on more than one occasion that only he has the power to order detainees to and from Gitmo. Judge Urbina's order to "bring the bodies before him" contradicts that assertion of sole Executive power - and could create a collision either at Gitmo, or when the detainees landed in the US to be placed in the hands of the USMS.

Such collisions did occur during our Civil War (very early in Lincoln's administration), where provost marshals simply refused to honor the habeas orders, and had their troopers ready to physically prevent the USMS from taking custody of the detainees.

So, in that sense, the DC Circuit's very terse stay order has some logic. That is my take on it - others may well have different opinions.

[jmm99]

and the DoJ finds some facts to present to the DC Circuit - and to us.

U.S. sees danger if detainees come
Friday, October 10th, 2008 5:02 pm | Lyle Denniston
.....
The Justice Department moved on Friday to get a longer postponement of any move of Guantanamo Bay detainees to the U.S. mainland, saying that “could pose a danger to the public at large.” It asked the D.C. Circuit Court to allow no such transfer until the Supreme Court has considered the delay issue. ....

http://www.scotusblog.com/wp/us-sees...etainees-come/

The DoJ motion is here

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

There are three points here:

1. The factual basis for the stay - see below (this interested me the most)

2. The legal basis for the stay.

The issues raised (motion, pp.8-18) are immigration law issues (the DTA, AUMF, etc., seem no longer operative, except for some reliance on the Executive's inherent authority to wind-up detentions at pp.16-18). So far as immigration law is concerned, this case will be one of "first impression". Whether documented or undocumented, prior immigration cases involved aliens who came here voluntarily. The DoJ motion characterizes Judge Urbina's orders (quoted in prior posts) as something quite different from what they say to me. You will have to judge that for yourselves.

3. The proposed timetable.

(motion, p.3)

To minimize delay, the Government requests such expedition. We propose that 'the Court issue a briefing schedule under which the opening merits brief would be due 14 days fiom the date of the Court's ruling on this motion, the response brief would be due 14 days later, and the reply brief would be due 7 days after that. Oral argument could be scheduled at the Court's earliest convenience following the conclusion of briefing.

Since the final filings on the stay motion will not be made until late next week, a fast-track here would be a DC Circuit decision on the merits of Judge Urbina's "release order" in about 60+ days.

However, since we are approaching the Holidays, with any sort of luck, the decision should spill into the start of the new administration - when we probably can expect new policies and new personnel at Justice.

PS: The Uighurs are also involved in another proceeding before the DC Circuit (the Bismullah I, II and III DTA discovery process), which has just reared its head again (SCOTUSblog also) - but, it is too complicated to cover in a single post. Have to think about how to present that one.

----------------------------------------------
1. The factual basis for the stay.

(motion, pp.4-6)

1. Petitioners are 17 Chinese Uighurs who traveled to Afghanistan to receive weapons training at military camps run by the East Turkistan Islamic Movement (ETIM). See Op. 2d3. They were subsequently captured by coalition forces and turned over to the U.S. military, which held them as enemy combatants at Guantanamo Bay. Each petitioner received a hearing before a CSRT to determine whether he was properly detained as an enemy combatant. Virtually all of petitioners testified at those hearings and/or told government interviewers that they had gone to Afghanistan to seek weapons training to fight the Chinese Government.

Thus, many petitioners stated that they were trained to use assault weapons at the camps. See, e.g., Mamet (ISN 102) CSRT 32 (stating that he as "given * * * instruction with an AK-47"); Mahnut (ISN 277) CSRT 16 (same); Nasser (ISN 278) CSRT 28 (same); Hassan (ISN 250) CSRT 2 (same); Memet (ISN 328) CSRT 16 (he "received training on pistols, AK-47, and two types of rifles"); Tourson (ISN 20 1) CSRT 15 (he "trained to use the rifle"); Sabour (ISN 275) CSRT 15 (the "training we got [was] on the Kalashnikov rifle"); Abdurehim (ISN 289) CSRT 15- 16 (same); Ali (ISN 280) CSRT 17-1 8,20 (same); Jalaldin (ISN 285) CSRT 20 (same); Osman (ISN 282) CSRT 16, 18 (same); Parhat (ISN 320) CSRT 15, 19 (he "trained on two * * * kinds of weapons," including the Kalashnikov).

The petitioners (with one exception) also explained that they sought this military training for the purpose of attacking China or Chinese interests. Rahman, for example, testified that he sought "training to fight back against the Chinese government." See Rahman (ISN 281) CSRT 14, 16. Parhat stated that he went to a camp to "train to fight * * * against the Chinese" and that he "would fight along the side of any group who was against the Chinese." Parhat (ISN 320) CSRT 44, 46. Tourson declared his intent to "go back to fight against the Chinese government." See Tourson (ISN 201) CSRT 23; see also, e.g., Noori (ISN 584) CSRT 20 (stating that purpose of his training was "to return to his home and fight the Chinese"); Mahnut (ISN 277) CSRT 4 1-42 (stating that he wanted to take "action against the Chinese military"); Mamet (ISN 102) CSRT 70; Hassan (ISN 250) CSRT 1; Abdurehim (ISN 289) CSRT 13; Memet (ISN 328) CSRT 17; Semet (ISN 295) CSRT 19; Razakah (ISN 219) CSRT 17; Sabour (ISN 275) CSRT 18; Ali (ISN 280) CSRT 23; Nasser (ISN 278) CSRT 28; Jalaldin (ISN 285) CSRT 16; Osman (ISN 282) CSRT 16, 19-20, 23. [2] [2] The remaining petitioner, Arkin Mahmud, stated that he was en route to a military training camp, but was captured before he arrived. See Mahrnud (ISN 103) CSRT 12.

2. In Parhat, this Court reviewed, pursuant to the Detainee Treatment Act, a CSRT's determination that Parhat is an enemy combatant. The Court held that, in order to establish Parhat's enemy combatant status, the Government was required to present reliable evidence that (1) Parhat was part of or supporting ETIM, (2) ETIM was associated with a1 Qaida or the Taliban, and (3) ETIM is engaged in hostilities against the United States or its coalition partners. 532 F.3d at 843. The Court held that the CSRT's determination was not valid because the evidence "lacked sufficient indicia of * * * reliability" to establish the second and third elements. Id. at 836,844.

However, the Court did not find unreliable the evidence that Parhat had been a part of or a supporter of ETIM, which consisted primarily of "Parhat's own statements and those of other Uighur detainees." Id. at 843-44. The Court described Parhat's repeated statements at his CSRT that "the government of China" is his "enemy." Id. at 842.

Note that the original Parhat panel found the evidence "lacked sufficient indicia of * * * reliability" to establish that (2) ETIM was associated with a1 Qaida or the Taliban, and (3) ETIM is engaged in hostilities against the United States or its coalition partners.

Some entries on East Turkistan Islamic Movement (ETIM; as to which, there seems some controversy) are here.

http://www.cfr.org/publication/9179/

http://en.wikipedia.org/wiki/East_Tu...lamic_Movement

Now, gentle readers - I am not knowledgeable about this group. So, some help from the audience would be useful here - then, we could assess whether they are a threat, and against whom.

[jmm99]

Detainees: U.S. has forfeited claims of threats
Tuesday, October 14th, 2008 6:21 pm | Lyle Denniston
....
Lawyers for 17 detainees being held at Guantanamo Bay argued in a new court filing Tuesday afternoon that the government gave up its chance to show that the men would be dangerous if brought into the U.S., and cannot now try to use new and unsupported claims to keep them from coming. ....
.....
Under the Circuit Court’s temporary stay order, the Justice Department is to file a reply brief on Thursday.

http://www.scotusblog.com/wp/detaine...ms-of-threats/

The detainees' brief (10.3 MB - I have no idea why this 23 page brief is this big in MB, but it is) is here.

http://www.scotusblog.com/wp/wp-cont...y-10-14-08.pdf

The detainees' brief has some interesting additional facts about the case (as did the DoJ in its brief). For example, we have this:

(p.2)
Last June, Judge Urbina regained custody of Appellees' habeas cases. The oldest, Kiyemba v. Bush, No. 05-1 509, dated from July 2005. As to ten Appellees, the Government never filed a habeas return. [1]

[1] As to those ten it still has not. No habeas return was filed for Appellees Nasser (ISN 278), Semet (ISN 295)' Memet (ISN 328), Parhat (ISN 320), Jalaldin (ISN 285), Ali (ISN 280), Osman (ISN 282), Ghaffar (ISN 281), Sabour (ISN 275), and Noori (ISN 584). The Government produced part of the "record on review" in some DTA cases, but these documents were not made part of the habeas record.

See Ex. A at 1 (conceding that Appellees may use in habeas cases classified CSRT hearing records filed in their DTA cases, an action Appellees never needed to take because the Government never made a return or otherwise presented or contested facts). The Government filed a habeas return-in each case only the CSRT hearing record-for Appellees Mahnut (ISN 277), Mahmud (ISN 103), Mamet (ISN 102), Razakah (ISN 219), Tourson (ISN 201), Mohammad (ISN 250), and Thabid (ISN 289). As to those, the Government avoided any traverse by its September 30 concession that it would not contest that each was a noncombatant.

I find this amazing (lawyers are supposed to file answers to complaints); but then I find the DoJ's need for additional time in the somewhat related discovery proceedings in both the DC Circuit and DC District also amazing.

The key issue to me about the Uighurs is the security issue (who would house them and what custodial safeguards would be provided - monitoring devices, etc.). The brief covers that to some extent.

(pp.4-5)
The court offered the Government a last chance - soliciting a factual proffer of "the security risk to the United States should these people be permitted to live here." Ex. H (Hrg. Tr. ("Tr.")) 15. The Government responded, "I don't have available to me today any particular specific analysis as to what the threats of -from a particular individual might be if a particular individual were let loose on the street." Tr. 17. The Government offered no evidence.

The Government had "seven years to study this issue," Tr. 15, three years' notice of these habeas cases, ten weeks' notice of the Release Motion, and six weeks' notice of the hearing date on the motion. The district court never barred or denied any offer of the Government of a return, or indeed any evidence at all. (The court did require detailed proffers concerning the practical arrangements in place for release and resettlement, and as to who would host the men and where. Witnesses were present and ready to testify. The Government accepted the evidence by proffer and declined to challenge or cross-examine. Tr. 43-52.) [5]

[5] The suggestion that he was about to free the men carelessly, Mot. 19 n.7, does a gross disservice to Judge Urbina, omitting pages of context concerning the Government's provocative assertion that the men would be jailed upon arrival by a DHS that needed an additional week to consider its options. Tr. 46-52. Judge Urbina expressly retained the authority to set appropriate conditions when the Appellees arrived at his courtroom on October 10. Ex. I (October 8 release order stating that Judge Urbina intended to address release conditions on October 10).

In a normal habeas proceeding where the government has conceded as much as it has conceded here, a stay pending an appeal would be unlikely.

However, I would not be surprised if a stay (and fast-track appeal schedule) were granted. That would put the matter well beyond Election Day (perhaps into January) and the matter could then become moot depending on the policies of the new administration. Appellate courts are often practical institutions.

[jmm99]

This development is not that surprising for several reasons (discussed in the articles below). But, first the development.

U.S. wants Hamdan held longer
Sunday, October 19th, 2008 4:01 pm | Lyle Denniston
......
Anticipating an imminent new test of the constitutional right the Supreme Court has recognized for Guantanamo Bay detainees, the Justice Department and Pentagon are seeking to keep a Yemeni national, Salim Ahmed Hamdan, in captivity at Guantanamo Bay long after his war crimes sentence is scheduled to end. .....
....
While the dispute at this stage focuses primarily on military law, the underlying theory on which the government’s new move is based has implications for all detainees still at Guantanamo, including some 80 others who, like Hamdan, have been charged with war crimes.
....
Whatever happens in a military commission case, the motion contended, “the United States would be fully justified to continue to detain someone adjudged to be an enmy combatant in order to prevent his return to the battlefield.” ....

http://www.scotusblog.com/wp/us-want...ger/#more-8101

The WSJ article is here.

Wall Street Journal
October 17, 2008
New Sentence Is Sought for Bin Laden's Driver
By Jess Bravin

WASHINGTON -- The Bush administration wants the military jury that sentenced Osama bin Laden's former driver to reconvene for new deliberations that could add five years to his scheduled release date of Dec. 31. ....
.....
Prosecutor John Murphy, a Justice Department attorney, initially said the government accepted the decision and called it "a victory for the system." But on Sept. 24, prosecutors filed a motion asking that the sentence be reconsidered.....
....
The motion contends that the military judge, Navy Capt. Keith Allred, lacked authority to credit Mr. Hamdan for the time he served in pretrial confinement. Without such credit, Mr. Hamdan, who was captured in November 2001, would face an extra five years.

The chief Guantanamo prosecutor, Col. Lawrence Morris, said the government wants to clarify that unlike courts-martial, military commissions cannot credit defendants for time served.

"The length of the sentence is a matter of indifference to us," Col. Morris said. He said that if the jury still wants Mr. Hamdan released on Dec. 31, it could resentence him to however many days remained until then.
.....
Regardless of his criminal sentence, the government maintains it can hold Mr. Hamdan indefinitely as an unlawful enemy combatant. The government has not disclosed its plans for Mr. Hamdan, defense lawyers said.

http://www.scotusblog.com/wp/wp-cont...-story-wsj.doc

The government's motion (7 pp.) is here

http://www.scotusblog.com/wp/wp-cont...ce-9-24-08.pdf

Hamdan's response (18 pp.) is here.

http://www.scotusblog.com/wp/wp-cont...w-sentence.pdf

The government's reply (8 pp.) is here.

http://www.scotusblog.com/wp/wp-cont...e-10-16-08.pdf

Normally in criminal cases (Federal, state and UCMJ), the convicted defendant is granted credit for time served. One issue is whether the MCA process allows that explicitly or implicitly. Another issue is whether, if the MCA process does not allow that, the government waived that alleged error by not objecting to Judge Allred's instruction to that effect.

As to this motion, I am not going to go into detail on the merits, leaving them up to Judge Allred who has (IMO) done a good job with this first MCA trial. Even if the motion were granted, the jury panel could re-affirm its prior result by imposing a lesser sentence - as Col. Morris correctly pointed out in the WSJ article.

The real dispute will arise when Hamdan's sentence is completed (let us assume 31 Dec 2008). Will he then be eligible for release from Gitmo. The government says "no".

At that point, the case will resemble (but is not the same) as the present Uighur cases before Judge Urbina and the DC circuit. The key factual distinction (possibly critical legally) is this:

1. Hamdan has been determined to be an "enemy combatant" guilty of "war crimes" (as we are somewhat loosely using that term here - "MCA crimes" seem more technically correct).

2. The Uighurs have been determined not to be "enemy combatants" and have not been charged with "war crimes" (as used here).

So far as Hamdan is concerned, his release from Gitmo (if it ever occurs) will be under a new administration (whoever is elected). Hence, the present motion in Hamdan may just be marking time.

Resolving the issues now presented in Hamdan are relevant to some 80 pending Gitmo trials. Of course, a new administration might change the Gitmo policies - so, a "wait and see" attitude seems reasonable.

[jmm99]

as predicted - so, no surprise on this discussion board.

Transfer of detainees to U.S. blocked
Monday, October 20th, 2008 10:47 pm | Lyle Denniston
.....
In a split decision, the D.C. Circuit Court on Monday evening barred — until at least late November — the transfer of 17 Guantanamo Bay detainees to the U.S., where they were to be released. A three-judge panel, with one dissent, granted the request of the Justice Department and Pentagon to postpone any transfer while the panel considers a group of government appeals arguing that the courts have no power to require detainees to be brought into the U.S......

http://www.scotusblog.com/wp/transfe...ked/#more-8111

The court's very brief order (and a 4 page dissent by Judge Rogers) is here.

http://www.scotusblog.com/wp/wp-cont...r-10-20-08.pdf

The majority's opinion is a one liner (without further explanation of why the government's motion met each of the "sringent standards"):

(order p.1)
Appellants have satisfied the stringent standards required for a stay pending appeal.

The briefing schedule is as follows:

(order p.2)
Appellants’ Brief - October 24, 2008 (not to exceed 14,000 words)
Appendix - October 24, 2008
Appellees’ Joint Brief - October 31, 2008 (not to exceed 14,000 words)
Reply Brief - November 7, 2008 (not to exceed 7,000 words)

The parties are directed to file and serve their briefs by hand. This panel will hear oral argument in these consolidated cases on November 24, 2008, at 9:30 a.m.

A 14,000 word brief is medium weight. I went back to a brief I filed in 2006 in support of a summary disposition motion, which had 2500+ words in 7 pages - the exhibits filed with it (corresponding to an Appendix in an appellate court) were several inches thick. So, 14,000 words would = roughly 40 pages.

Judge Rogers' opinion correctly sets out the standards used generally in the Federal courts for staying the release (pending appeal) of prisoners granted habeas relief. Those standards are:

(pp.4-6)
Rule 23(c) of the Federal Rules of Appellate Procedure provides that: While a decision ordering the release of a prisoner is under review, the prisoner must — unless the court or judge rendering the decision, or the court of appeals, or the Supreme Court . . . orders otherwise — be released on personal recognizance, with or without surety.

FED. R. APP. P. 23(c). Under Hilton v. Braunskill, the presumption of release pending appeal of a habeas grant is subject to consideration by the appellate court of the four factors traditionally considered in deciding whether to grant a stay. 481 U.S. 770, 777 (1987). Those four factors also weigh against a stay here.

First, as regards the likelihood of success on the merits, ....
.....
Under the second factor, the government fails to establish irreparable harm.....
....
Under the third factor, the petitioners clearly have a substantial interest in release, for the interest in release is “always substantial.” ...
....
Finally, as regards the public interest, the fourth factor, ....

I've not quoted Judge Rogers' discussion of the four factors (you can read her statement), since the majority (JJ. Henderson and Randolph) did not discuss their reasoning as to how the standards had been met.

As stated before, this case will now proceed to a hearing after the election, with a decision during the Holiday season - and an appeal to SCOTUS after that. By that time, the policies of the new administration toward Gitmo will be more clear - and we shall go from there (wherever "there" is).

[jmm99]

that is, that the entire DC Circuit (10 eligible judges) rehear the issues decided by the order (2-1) issued by the 3-judge panel last nite.

Uighurs seek en banc review
Tuesday, October 21st, 2008 4:13 pm | Lyle Denniston
.......
Saying they fear at least another year in confinement for Guantanamo Bay detainees who are no longer being treated as enemies, lawyers for 17 Chinese Muslim prisoners asked the D.C. Circuit Court on Tuesday to move rapidly before the full ten-judge Court to review the detainees’ plea for release into the U.S.

The petition for en banc rehearing asked the Circuit Court to lift a ban on the detainees’ release that was issued Monday by a three-judge Circuit panel. But, in addition, the petition suggested the en banc Court move ahead with review on the merits without waiting for further action before the panel. .....

http://www.scotusblog.com/wp/uighurs...n-banc-review/

----------------------------------------
This case is becoming a good outline of what "moves" are available to litigants before the Federal Courts of Appeal. Here are the steps so far (## 1 & 2 are common; the remainder are less common):

1. Habeas order for release entered by DC District judge Urbina.

2. Notice of Appeal filed with DC Circuit.

3. Motion for Stay Pending Appeal filed with DC Circuit.

4. Emergency Motion for Stay Pending Determination of Motion (# 3) filed with DC Circuit.

5. Emergency Motion (# 4) granted by 3-judge panel.

6. Motion for Stay (# 3) granted by 3-judge panel (with expidited appellate schedule).

7. Petition for Rehearing En Banc of Motions for Stays (## 3 & 4) filed with DC Circuit.

After step # 6, the detainees had three options (not necessarily exclusive of each other): (1) petition for rehearing before the 3-judge panel; (2) petition for rehearing before the DC Circuit en banc; and (3) petition for certiorari to SCOTUS. The most favorable option (not that favorable) of the three is the en banc petition.

28 USC 46(c) provides for hearing and rehearing by a 3-judge panel unless hearing or rehearing en banc is allowed by majority vote of the circuit's judges eligible to vote on the en banc petition. The statute, and the notes to FRAP Rule 35, can be found here and here.

FRAP Rule 35(a) spells out the basic requirements controlling en banc hearings and rehearings.

Rule 35. En Banc Determination

(a) When Hearing or Rehearing En Banc May Be Ordered.

A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:

(1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or

(2) the proceeding involves a question of exceptional importance

http://www.law.cornell.edu/rules/frap/rules.html#Rule35

Since en banc review is expressly disfavored (but so are stays in habeas cases), the detainees' problem will be convincing a majority of the judges eligible to participate (6 out of 10) to vote in favor of the petition.

-------------------------------------
The practical differences between requesting a rehearing before the original 3-judge panel and a rehearing en banc can be found here in down to earth language.

Beldar Blog
Wednesday, December 27, 2006
Federal appellate panel rehearing vs. rehearing en banc
....
... the tone of a motion for panel rehearing may be very solicitous, along the lines of, "Gosh, Your Honors, we're sorry, we just didn't know you would be interested in Issue X-and-such, but now that we know that, here's our position on that, and here's why you ought to want to grant panel rehearing to fix this problem in your original panel opinion (and by the way, here's why that means we win instead of we lose)."

The underlying tone and subtext of a motion for rehearing en banc, however, is typically much more adversarial, along the lines of "Hey Fifth Circuit! Three of your colleagues just screwed the pooch very badly, so you need to unscrew it before we ask the Supremes to do so, 'cause they and the other Circuits are going to be pointing the finger at your Circuit and snickering behind your backs!"

Obviously, this sort of pitch has to be really sub-textual, and cloaked in appropriately respectful language, to have any chance at all of success. But that is the basic and essential pitch: "Y'all need to gang up and overrule three of your colleagues who've botched it." ....

http://beldar.blogs.com/beldarblog/2...l_appella.html

Keeping all of the above in mind, you can then consider the detainee's petition (10 pp.), which can be found here.

http://www.scotusblog.com/wp/uighurs...n-banc-review/

No new arguments are raised in this petition; but it does emphasize the many problems in judicial administration within the DC Circuit created by the habeas cases. That is an invitation, of course, for the entire court to adopt uniform "ROEs" for managing these cases.

If that invitation appeals to 6 of the 10 judges, the petition might be granted. On the other hand, if 6 of the 10 would as soon adopt a "wait and see" attitude, the petition would be denied. This petition seems something of a "Hail Mary", but sometimes those plays work.

-------------------------------------------
A footnote to the Uighurs' petition is a Motion for Conditional Order of Contempt against Robert Gates filed in the DC Circuit in the separate Parhat case. This motion has been known since last Thursday, but was made public today after review for classified information was completed.

http://www.scotusblog.com/wp/wp-cont...10-16-2008.pdf

It pertains to the DC Circuit's order of 20 Jun 2008, which became final on 12 Sep 2008 and which ordered Parhat to be released or transferred.

That motion is not controlled by the appeal of Judge Urbina's habeas order, since it was entered in the DC Circuit's review of his DTA determination. The motion therefore ties in with the very complex Bismullah discovery litigation; and the DoJ's request that all DTA proceedings before the DC Circuit be abandoned. That litigation is also still pending.

A declaration (not earth-shaking) by one of the detainee's attorneys about Gitmo conditions for the Uighurs is here.

http://www.scotusblog.com/wp/wp-cont...10-16-2008.pdf

[jmm99]

As we move closer to election day, it is becoming more and more obvious that no binding decisions will be made until the new administration confronts the pending cases and the continued use of Gitmo to house the detaineees.

So, moving away from the legal issues for one post, here are some recent commentaries from the political side.

This NY Times article generated some heat (which one can find easily by Googling). The portions I found relevant to future legal developments were the positions (or rather, the non-positions) of the two major candidates:

NY Times
Bush Decides to Keep Guantánamo Open
......
By STEVEN LEE MYERS
Published: October 20, 2008

WASHINGTON — Despite his stated desire to close the American prison at Guantánamo Bay, Cuba, President Bush has decided not to do so, and never considered proposals drafted in the State Department and the Pentagon that outlined options for transferring the detainees elsewhere, according to senior administration officials.....
.....
Both presidential candidates, Senators John McCain and Barack Obama, have called for closing Guantánamo and could reverse Mr. Bush’s policy, though probably not quickly since neither has spelled out precisely how to deal with some of the thorniest legal consequences of shutting the prison.
.....
Mr. McCain has suggested moving the detainees to Fort Leavenworth, Kan., home of the Army’s prison. His remarks prompted a letter in June from the two Republican senators from Kansas, Sam Brownback and Pat Roberts, objecting to the idea on a variety of grounds.

Mr. McCain’s campaign did not respond to requests for comments about Guantánamo. The Obama campaign declined to comment specifically, but in his platform, Mr. Obama promises to abolish military tribunals and conduct a review to determine which prisoners to prosecute, which to hold under the laws of war and which to release. His proposal does not specify where detainees would be held.

Other sites that have been mentioned include the United States Naval Consolidated Brig in Charleston, S.C., and the United States Penitentiary Administrative Maximum Facility, known as supermax, in Florence, Colo. ....

http://www.nytimes.com/2008/10/21/wa...in&oref=slogin

While the candidates avoid spelling out a precise plan, the present administration continues to blow hot and cold in individual cases. So, from yesterday, we find a set of dismissals - non-dismissals:

US drops charges against 5 Guantanamo prisoners
US drops charges against 5 at Guantanamo after prosecutor complains about withheld evidence
ANDREW O. SELSKY
AP News
Oct 21, 2008 17:20 EST

The U.S. military abruptly dropped charges against five Guantanamo Bay detainees, including one who allegedly plotted to detonate a "dirty bomb" in the U.S., after a prosecutor charged the military was suppressing evidence that could have helped clear them.

But despite the decision, announced Tuesday, there are no plans to free the men. New trial teams are taking another look at the evidence, the military said, and after consulting with intelligence agencies will recommend whether to reinstate charges.

That means the administration of the next U.S. president will probably get to decide what to do with the cases, including that of Binyam Mohamed, accused of plotting with U.S. citizen Jose Padilla to set off a radioactive bomb and fill apartments with natural gas to blow up buildings.
.....
In addition to Mohamed, the military dropped charges against Ghassan Abdullah al Sharbi, a U.S.-educated Saudi who allegedly plotted to bomb U.S. troops in Afghanistan; Jabran Said Bin al Qahtani, a Saudi charged with helping al-Qaida make bombs in Pakistan; and Sufyiam Barhoumi of Algeria and Noor Uthman Muhammed of Sudan who allegedly trained al-Qaida recruits in Afghanistan.

http://wiredispatch.com/news/?id=427064

Googling "how to close guantanamo" gets over 11,000 hits. Here are two plans that seem closer to the Obama position than the McCain position.

http://www.humanrightsfirst.org/pdf/...-blueprint.pdf

http://www.americanprogress.org/issu...guantanamo.pdf

What is interesting about these plans is that both project a time frame of 1-2 years (from now) - not to complete the process of trying detainees, but to get to the point of trying them (either in Federal courts or in military courts under the UCMJ, since the MCA courts would be abolished).

What seems totally nutty (IMO) is that we are now 7 years out from 9/11. We have yet to bring its major figures to trial for that war crime - even though we have had them (I speak of KSM and his companions) in custody for most of that time.

[jmm99]

That definition is key to both the DTA and MCA processes, as well as the habeas cases.

So far, two cases (Parhat & Hamdan) have dealt with the question based on the specific evidence, or lack thereof, presented in each case.

Hamdan was found an "unlawful enemy combatant" by Judge Allred in Dec 2007 (based on a de novo evidentiary hearing, after he rejected the CSRT determination).

But, in Parhat, the DC Circuit panel found that the CSRT evidence against Parhat was insufficient to establish that he was an "enemy combatant" at all (lawful or unlawful).

The evidence did suggest that Parhat might be considered a potential combatant against China - 50 years ago, he and the other Uighurs would have been prime recruits for US covert action operations in mainland China. Times do change.

Time is running against Judge Leon's determination that he will complete trials in all 24 of his habeas cases before year's end. To eliminate duplicative hearings, he ordered the parties to brief the definition of "enemy combatant" to be used in all 24 cases. He will decide that after a hearing tomorrow.

An inquiry into “enemy” status
Wednesday, October 22nd, 2008 4:34 pm | Lyle Denniston
.....
In a hearing that could have major consequences for the government’s entire program of indefinitely detaining terrorism suspects, U.S. District Judge Richard J. Leon on Thursday confronts the outwardly simple issue of who qualifies as an enemy — specifically, an “enemy combatant.” Only if a prisoner is so designated can the government continue to keep that individual in prolonged custody. Absent such a designation, in other words, a detainee must be released. ....

http://www.scotusblog.com/wp/an-inqu...tus/#more-8119

Given the situation in the Uighur cases (who clearly are not "enemy combatants"), Lyle is being a bit optimistic with his conclusion - "Absent such a designation, in other words, a detainee must be released."

In any event, the detainees' proposed definition (23 pp.) is here.

(p.21)
CONCLUSION
The Court should employ the definition of “enemy combatant” established under longstanding law-of-war principles, namely to include: (1) a member of a State military that is engaged in an armed conflict against the United States, or (2) a civilian directly participating in hostilities as part of an organized armed force in an armed conflict against the United States. Only such people are on the “battlefield” and may be legitimately “removed” from it by use of military force. For the reasons stated in Petitioners’ Traverse, the Government has failed to show that Petitioners fall into either category; indeed, it has not even alleged that they do. The writ of habeas corpus should be granted.

http://www.scotusblog.com/wp/wp-cont...u-10-20-08.pdf

The DoJ's definition (21 pp.) is here.

(p.5)
An enemy combatant is an individual who was part of or supporting forces engaged in hostilities against the United States or its coalition partners. This includes an individual who was part of or supporting Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners. This also includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

http://www.scotusblog.com/wp/wp-cont...m-10-22-08.pdf

All readers here will instantly recognize that we are dealing with a dichotomy between conventional warfare (the detainees' definition) and unconventional warfare (the DoJ's definition). That the two sets of lawyers are living in parallel universes is apparent when you read through the briefs. The "battlefield" in one universe is clearly different from the "battlefield" in the other.

My guess is that most here at SWC would be inclined to the DoJ's definition.

Here is your chance to beat Judge Leon to the punch.

Comments ?

[jmm99]

both at Gitmo and in the DC Circuit. The Hail Mary play did not work; and the game will now go into the first period of overtime - with more than one period expected.

En banc denied in Uighurs’ case
Friday, October 24th, 2008 3:43 pm | Lyle Denniston
.....
Over two judges’ dissents, the en banc D.C. Circuit Court refused on Friday to review a three-judge panel’s order postponing until at least late November any transfer of 17 Guantanamo Bay detainees to the U.S. ....

The order is brief, without an opinion.

http://www.scotusblog.com/wp/wp-cont...r-10-24-08.pdf

Judges Rogers and Brown voted to grant the petition for rehearing en banc. Judge Rogers was the dissent in the 2-1 decision of the DC Circuit panel order being appealed. Judge Brown has voted for en banc consideration of the Uighurs before (in Bismullah III), reasoning that the DC Circuit en banc should take a definitive position in these cases.

--------------------------------------

(from same SCOTUSblog)
UPDATED 4:40 p.m. with filing of new U.S. brief (see below)
.....
The Justice Department on Friday afternoon filed a 52-page merits brief. arguing that its agreement not to send the 17 Uighurs back to China, where they fear torture or death, did not bar it “from exercising its sovereign power” to deny them entry into the U.S. mainland. The detainees, it said, have no right under federal laws or under the Constitution to enter the U.S. over the objection of the Executive Branch.
....
Notably, however, the new brief does not repeat assertions made in prior filings in the case that the 17 Uighurs themselves are dangerous, and that they pose a distinct threat to national security because they previously had weapons training. Strong statements in prior court documents to that effect reportedly have brought protests from State Department diplomats, who contended that such claims had made it more difficult to get any country other than China to accept them as settlers.

The only allusion to the prior claims that the individuals were personally threatening to the U.S. was a rejection of Judge Urbina’s conclusion that the government by those earlier accusations had undermined diplomatic efforts to resettle the 17.

The detainees’ merits brief is due next Friday.

The DoJ's brief is here.

http://www.scotusblog.com/wp/wp-cont...f-10-24-08.pdf

Previously, we have noted that this case, which began as a DTA "unlawful enemy combatant" matter, has progressed more and more into a very unique immigration case. The DoJ brief has now very nearly completed that morphing. The Uighurs as threats to our security (national or personal) appear to have gone by the boards.

Based on the present factual record (which is incomplete since the merit hearings ordered by Judge Urbina have been stayed), the DC Circuit has limited options. One is to simply order the Uighurs held at Gitmo indefinitely. Another would be to remand to Judge Urbina to complete the merit hearings on the terms of custody and release. A third, I suppose, would be to remand the Uighurs to DHS custody for treatment as undocumented aliens.

The Uighurs' attorneys will file next Friday - so, a week without Uighurs - but wait, the Bismullah DTA appeal involving the same Uighurs is also coming on deck !

[jmm99]

It's easy here to get lost among the trees without a map of the forest. Here is a map, whose table of contents points to most of the issues discussed in this thread.

CRS Report for Congress
Order Code RL33180
Enemy Combatant Detainees:
Habeas Corpus Challenges in Federal Court
Updated September 10, 2008
Jennifer K. Elsea, Michael John Garcia, and Kenneth R. Thomas
Legislative Attorneys
American Law Division
.....
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Rasul v. Bush . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . 4
Combatant Status Review Tribunals . . . . . . . . . . . . . . . . . . . . 6
Court Challenges to the Detention Policy . . . . . . . . . . . . . . . . . 8
Khalid v. Bush . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
In re Guantanamo Detainee Cases . . . . . . . . . . . . . . . . . . . . . 11
Hamdan v. Rumsfeld . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Presidential Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
The Geneva Conventions and the Law of War . . . . . . . . . . . . . . 14
Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Al-Marri . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Detainee Treatment Act of 2005 (DTA) . . . . . . . . . . . . . . . . .. . 21
The Military Commissions Act of 2006 (MCA) . . . . . . . . . . . . . . . 23
Provisions Affecting Court Jurisdiction . . . . . . . . . . . .. . . . . . . . 23
Provisions Regarding the Geneva Conventions . . . . . . . . . . . . . . 25
Post-MCA Issues and Developments . . . . . . . . . . . . . . . . . . . . 27
Possible Application to U.S. Citizens . . . . . . . . . . . . . . . . . . . . . 28
DTA Challenges to Detention . . . . . . . . . . . . . . . . . . . . . .. . . . 29
Bismullah v. Gates . . . . . . . . . . . . . . . . . . . . . . . .. . . . ... . . . 29
Parhat v. Gates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 31
Boumediene v. Bush . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Constitutional Considerations and Options for Congress . . . . . . . . 40
Scope of Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 43
The Fact and Length of Detention . . . . . . . . . . . . . . . .... . . . . . 44
Conditions of Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Available Remedy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Extraterritorial Scope of Constitutional Writ of Habeas . . . . . . . . . 48
Use of Habeas Proceeding to Challenge the Jurisdiction
of a Military Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Congressional Authority over Federal Courts . . . . . . . . . . . . . . . . 49
Separation of Powers Issues . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Legislative Action in the 110th Congress . . . . . . . . . . . . . . . . . . 53
National Defense Authorization Provisions . . . . . . . . . . . . . . . . . . 53
Habeas Corpus Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Bills to Regulate Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

http://www.fas.org/sgp/crs/natsec/RL33180.pdf

The conclusion points to the future role of Congress in this process. That exact role will depend on the policies of the next administration; but here is the general roadmap:

(p.61 in .pdf)
CRS-58
Conclusion

The Administration’s policy of detaining wartime captives and suspected terrorists at the Guantanamo Bay Naval Station has raised a host of novel legal questions regarding, among other matters, the relative powers of the President and Congress to fight terrorism, as well as the power of the courts to review the actions of the political branches. The DTA was Congress’s first effort to impose limits on the President’s conduct of the Global War on Terrorism and to prescribe a limited role for the courts. The Supreme Court’s decision striking the DTA provision that attempted to eliminate the courts’ habeas jurisdiction may be seen as an indication that the Court will continue to play a role in determining the ultimate fate of the detainees at Guantanamo. However, the Court did not foreclose all options available to Congress to streamline habeas proceedings involving detainees at Guantanamo or elsewhere in connection with terrorism. Instead, it indicated that the permissibility of such measures will be weighed in the context of relevant circumstances and exigencies.

As a general matter, the courts have not accepted the view that the President has inherent constitutional authority to detain those he suspects may be involved in international terrorism. Rather, the courts have looked to the language of the AUMF and other legislation to determine the contours of presidential power. The Supreme Court has interpreted the AUMF with the assumption that Congress intended for the President to pursue the conflict in accordance with traditional law-of-war principles, and has upheld the detention of a “narrow category” of persons who fit the traditional definition of “enemy combatant” under the law of war. Other courts have been willing to accept a broader definition of “enemy combatant” to permit the detention of individuals who were not captured in circumstances suggesting their direct participation in hostilities against the United States, but a plurality of the Supreme Court warned that a novel interpretation of the scope of the law of war might cause their understanding of permissible executive action to unravel.

Consequently, Congress may be called upon to consider legislation to support the full range of authority asserted by the executive branch in connection with the GWOT. In the event the Court finds that the detentions in question are fully supported by statutory authorization, whether on the basis of existing law or new enactments, the key issue is likely to be whether the detentions comport with due process of law under the Constitution.

Emphasis added by JMM.

[jmm99]

Defining a wartime “enemy”
Monday, October 27th, 2008 2:13 pm | Lyle Denniston
.....
In an eight-minute hearing, the judge [Richard J. Leon] said he had settled on this definition:

“ ‘Enemy combatant’ shall mean an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed [a] belligerent act or has directly supported hostilities in aid of enemy combat forces.”

That is the formulation the Pentagon put into effect on July 7, 2004, to guide the detention decisions to be made by “Combatant Status Review Tribunals.” .....
.....
... the judge’s version omitted the broader language that opened the government’s proposal: “An enemy combatant is an individual who was part of or supporting forces engaged in hostilities against the United States or its coalition partners.”

http://www.scotusblog.com/wp/definin...emy/#more-8151

You might be surprised; but this is the first time that a Federal judge has required the parties to brief this very basic issue - and then has decided on a definition.

Hat tip to Judge Leon, whose written opinion (4 pp.) is here.

http://www.scotusblog.com/wp/wp-cont...r-10-27-08.pdf

This does NOT mean automatic affirmance of CSRT determinations - as Judge Leon points out (p.2), each case will present mixed questions of law and fact - where his definition of "enemy combatant" will be the law part. We need look no further than the Parhat case and the rest of the Uighurs to see that CSRT determinations may be fatally flawed factually.

The battle in Judge Leon's court should now move to the evidence supporting the CSRT determination for each detainee in light of Judge Leon's definition - and to the existence of any exculpatory evidence that might prove that the detainee was not an "enemy combatant" under that definition. As to the latter point, the DoJ has been very reluctant to provide discovery of possible exculpatory evidence. We shall see how Judge Leon - and the other DC District and Circuit judges - approach that issue.

There is a little "wiggle room" in Judge Leon's definition. The first sentence uses "supporting"; the second sentence uses "directly supported". The question is whether "indirect support" is covered (possible given first sentence) or not (clearly excluded under the second sentence). I expect that will be clarified before the merits hearings begin.

[Schmedlap]

Thanks for keeping this thread up-to-date. We're doing Hamdi v. Rumsfeld and Hamdan v. Rumsfeld in class tomorrow.

[jmm99]

would only be overload at this point in time. So, KISS - listen to what is said & listen to what is said. You already know what you want to say. Look for the seam (open door) to walk through - hopefully, on a path to an artery. Say a prayer to St. George.

Do a quick skim through the CRS Report for Congress in post # 113. It's pretty much middle of the road - maybe a slight liberal slant.

Let me know what Mr. Prof.'s take on those cases is.

[Schmedlap]

You already know what you want to say.

Actually, I don't. This is first year, first semester, basic Constitutional Law and I'm here to learn - not to try to change the opinion of a professor whose mind is made up. I'm learning as I go and, to my surprise, I agree with the majority opinion in Hamdi, simply because he was a US citizen and, for whatever reason, the gov't saw fit to bring him back to the US.

[jmm99]

See PM.

[jmm99]

Ali Hamza al-Bahlul is a Yemeni who was involved in AQ's agitprop department. His MCA trial is now in progress. This is an odd case because Ali Hamza is part of the "Boycott Gitmo Trials Movement" - in short, he is requiring his military defense counsel not to put on a defense.

Here are some background items on the case, starting with the CSRT findings:

A Summary of Evidence memo was prepared for the tribunal, listing the alleged facts that led to his detainment. His memo accused him of the following:[11]

a. Detainee is a member of al Qaida and associated with the Taliban.

Detainee admits being a member of al Qaida and swearing an oath of allegiance to Usama Bin Laden.

Detainee traveled to Afghanistan in 1999 to aid the Taliban in their struggle against the Northern
Alliance. The detainee stayed at several Taliban guesthouses in Pakistan while in transit to Afghanistan.

Detainee trained at a military training clinic in Afghanistan for five weeks. He received basic tactics and navigation training and instruction in the use of Russian weapons, light and heavy machine guns, and 75mm and 82mm Howitzers. Detainee also attended two months of advanced training at an al Qaida training camp.

Usama Bin Laden appointed detainee as his media office director and public relations secretary.

Detainee was responsible for producing all al-Qaida propaganda, including the video commemorating the USS Cole attack. In his capacity as public relations secretary, detainee regularly escorted Usama Bin Laden and often provided computer assistance to the Taliban. When with Bin Laden, the detainee carried a Kalashnikov rifle, two loaded magazines, a Makarov pistol, and a suicide belt equipped with explosives to protect Bin Laden.

Detainee was a roommate with two of the 9/11 hijackers while living in an al Qaida facility in Kandahar.

Detainee stated that he would kill Americans at the first opportunity upon his release from prison.

Detainee evacuated Kandahar with Usama Bin Laden several days before the 9/11 attacks. Detainee was tasked with establishing a video feed in order for Bin Laden to watch the 9/11 attacks.

b. Detainee engaged in hostilities against the United States.

Detainee engaged in combat on the front lines in Kabul from 1999 to 2001. While on the front lines, the detainee witnessed a speech by Usama Bin Laden praising the USS Cole bombing.

[11] OARDEC (7 September 2004). "Summary of Evidence for Combatant Status Review Tribunal -" pages 42-43. United States Department of Defense.

http://en.wikipedia.org/wiki/Ali_Ham...iman_Al_Bahlul

After some delay because of the intervening SCOTUS cases, he was re-charged under the MCA, together with Hamdan, in Feb 2008, as outlined in this Reuters article:

US military charges two more Guantanamo captives
Fri Feb 8, 2008 6:55pm EST
By Jane Sutton

GUANTANAMO BAY U.S. NAVAL BASE, Cuba, Feb 8 (Reuters) - U.S. military prosecutors filed war crimes charges against two more Guantanamo prisoners on Friday, saying one was an al Qaeda videographer and the other one a driver and bodyguard for Osama bin Laden.

That brings to seven the number of captives charged in the revised system of military tribunals created to try non-U.S. citizens held at the U.S. Navy base in southeast Cuba as part of the Bush administration's war against terrorism.

The charges say that Ali Hamza Ahmad Suliman al Bahlul, a 39-year-old Yemeni, was bin Laden's personal media secretary and occasional bodyguard, who created a recruiting video glorifying the bombing of the USS Cole.

Seventeen U.S. sailors were killed when al Qaeda militants attacked the ship as it was docked in Yemen in 2000.

Prosecutors also say al Bahlul made martyrdom videotapes styled as wills for two of the Sept. 11 hijackers and helped research the economic impact of the attacks they launched against the United States.......

http://www.reuters.com/article/lates.../idUSN08524780

The trial is currently before a 9-person MCA jury panel, who are looking at the video evidence.

Guantanamo Yemeni claims "al Qaeda's best video"
Wed Oct 29, 2008 2:06pm EDT
By Jane Sutton

GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) - A Yemeni prisoner watched an al Qaeda recruiting video with his Guantanamo interrogator and proudly admitted producing the work, the interrogator testified in the U.S. war crimes court on Wednesday.

"He considered it one of the best propaganda videos al Qaeda has to date," former FBI special agent Ali Soufan testified in the U.S. war crimes trial of defendant Ali Hamza al Bahlul.

Osama bin Laden was so impressed with the video that he promoted Bahlul to become his media secretary, the FBI agent quoted Bahlul as telling him.

Bahlul is on trial at the U.S. naval base in Guantanamo Bay, Cuba, on charges of conspiring with al Qaeda to commit murderous attacks, soliciting to commit murder and providing material support for terrorism. He faces life in prison if convicted. ...
....
Bahlul sat at the defense table beaming with pride during some segments and nodding in agreement at the bin Laden portions. He pounded his fist on the table once at the mention of the defilement of Muslim women.

Soufan testified that Bahlul had told him, "Everything I believe is in that tape."

Bahlul, a slightly built man with a short, dark beard, was denied permission to act as his own attorney. His U.S. military lawyer is honoring his request not to put on any defense in the tribunal that Bahlul previously called "a farce." ......

http://www.reuters.com/article/domes...081029?sp=true

Almost got past my radar screen - SCOTUSblog, for some reason, has not picked up on this one.

[jmm99]

McClatchy and the Guardian give us some background on the participants in Ali Hamza's ongoing trial. All quotes are from:

Alleged al-Qaida video maker's trial opens at Guantánamo Bay
Six of the jurors deliberated the sentence of David Hicks
Ali Hamza al-Bahlul refusing services of court attorney
McClatchy newspapers guardian.co.uk,
Tuesday October 28 2008 16.10 GMT

http://www.guardian.co.uk/world/2008...amza-al-bahlul

The judge, AF COL Ronald Gregory, normally tries cases involving AF personnel; e.g., two such case are here and here. In this case, the usual advice to the trial jury (that the defendant is not required to make any defense) has real meaning.

The judge, an air force colonel, Ronald Gregory, told the jury of US military colonels and navy captains that the burden is entirely on the prosecution to prove guilt. As in all trials, he said, the accused need not offer a defense.

The strategy may prove a challenge to the typically talkative al-Bahlul. Across years of pre-trial hearings, he has delivered hourlong monologues in which he declared his devotion to bin Laden and rejection of the US military's authority to judge him.

"I will never deny any actions I did alongside bin Laden fighting you and your allies, the Jews," al-Bahlul said at his May arraignment. "We will continue our jihad and nothing will stop us."

Gregory ruled before the jury was selected that al-Bahlul's boasts in the war-court chamber would be excluded from the trial.

The jury is also experienced. Some sat in on the David Hicks trial (conviction and 8 year sentence, which was a virtual nullity because pre-verdict a deal was made between the US and Aussie governments). The Gitmo jury panels are set up on a rotating basis, as explained in the article:

In a surprise, six of the jurors, including the foreman, had previously deliberated the sentence of another military commissions convict, Australian David Hicks. Hicks is the former kangaroo skinner turned al-Qaida foot soldier who pleaded guilty to a terror charge in exchange for speedy release.
.....
All the jurors' names were shielded from the public by court order. They included three army colonels, three navy captains, two Air Force colonels and a marine colonel with pilot's wings plainly visible on his uniform.
....
A representative of the clerk of court's office, who was brought to answer reporters' questions on condition she not be identified, said the war court has four rotating panels.

They were compiled from a pool of fewer than 100 pre-approved US military officers from all four services - and will be repeatedly called back to Guantánamo for the terror trials. With predictions that the Pentagon might prosecute up to 80 of the 255 detainees here, that means the same jurors might hear up to 20 cases - like a grand jury in civilian life.

The defense counsel, AF MAJ David Frakt, will have the most difficult job that a trial lawyer can ever undertake - to sit in the courtroom and keep his mouth shut.

This time there will be no defense.

"It goes against all of my training and instincts," said Air Force Reserve Major David Frakt, al-Bahlul's Pentagon-appointed attorney.

Frakt, a law professor in civilian life, said he obtained an opinion from his New Jersey Bar that permits him to follow his client's wishes.

Yesterday, he shook his head, indicating no, each time the judge called on him.

"Mr al Bahlul says we are spectators at a soap opera," he later said, explaining the Yemeni's reason for the boycott. He rejects the military commissions, he said, does not believe his activities were war crimes and respects only Islamic law.

He (Hamza) "respects only Islamic law". I repeat that quote because it ties in with the "Defending Hamdan" thread in this forum - and the issue of whether the Taliban and AQ ever accepted and applied the GCs in Afghanistan.

Thus, my four questions centered on whether common Art. 2 of the GCs was met by the Taliban and AQ armed forces (see post # 33 here for more explanation).

Did the Taliban state, at any time, that it was bound by the provisions of the GCs, including common Article III ? If so, provide text of statement, date, source, etc.

Did the Taliban abide by the provisions of the GCs in their armed conflicts with the Northern Alliance, US and allied forces ? If so, make your case - prove it

Did AQ-Ansar state, at any time, that it was bound by the provisions of the GCs, including common Article III ? If so, provide text of statement, date, source, etc.

Did AQ-Ansar abide by the provisions of the GCs in their armed conflicts with the Northern Alliance, US and allied forces ? If so, make your case - prove it

Mr. Hamza's rejection of all but Islamic law (as interpreted by AQ) is just another bit of evidence showing that acceptance and application of the GCs by them was nil. That is proved much more fully by the pre- and post-9/11 actions by both the Taliban and AQ in Afghanistan, which clearly did not accord with the GCs.

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The prosecution will move forward with evidence from 3 of the Lackawanna Six.

Washington Times
3 from NY terror case to testify at Gitmo trial
DAVID MCFADDEN ASSOCIATED PRESS
Originally published 09:56 a.m., October 30, 2008, updated 09:23 a.m., October 30, 2008

GUANTANAMO BAY NAVAL BASE, CUBA (AP) - Three men convicted in an upstate New York terrorism case were expected to testify Thursday in the war-crimes trial of a Guantanamo prisoner accused of producing propaganda for Osama bin Laden, military officials said.

Three of the so-called "Lackawanna Six" were transferred from an Indiana prison to the U.S. Navy base in Cuba to testify for the prosecution in the trial of Ali Hamza al-Bahlul, said Air Force Col. Ronald Gregory, the judge in the second Guantanamo war-crimes trial.

The three men _ Yahya Goba, Yasein Taher and Sahim Alwan _ pleaded guilty in 2003 to providing material support to a terrorist organization. ...

http://washingtontimes.com/news/2008...t-gitmo-trial/

Presumably, they will testify that they were influenced by Hamza's videos and agitprop.