Crimes, War Crimes and the War on Terror

[SWOTriathlete]

We could always BRAC GITMO and just leave them there for the Cubans...

[jmm99]

BRAC out of Base Closure and Realignment is beyond me - Base Realignment and Closure would be a better match. Obviously, I'd make a poor alphabet soup chef.

SWOTriathlete, you might want to introduce yourself a bit more - thanks.

[Boondoggle]

4 Uighars now enjoying the view of the Atlantic from Bermuda. Somehow this all reminds of the search for a permanent home for Napoleon. Hopefully more St. Helena and less Elba.

http://www.foxnews.com/politics/2009...-sent-bermuda/

[jmm99]

OK, 4 on Bermuda and perhaps the rest on a Palauan islet - so, SCOTUS probably will not have to make a decision at its 25 Jun conference.

Four Uighurs leave Guantanamo
Thursday, June 11th, 2009 10:03 am | Lyle Denniston
.....
The Supreme Court is currently scheduled to consider the Uighurs’ case at a private Conference on June 25. If all are transferred before then, however, the case is likely to be dismissed without a ruling on whether the courts have any authority to order release of Guantanamo prisoners into mainland U.S. to live, even temporarily. The D.C. Circuit Court ruled that there is no judicial power to do that.

Twice before — once during the Bush Administration, once during the Obama Administration — the government has headed off Supreme Court review of a detainee case by moving the individual out of detention into civilian custody, for criminal prosecution in the regular federal court system on terrorism-related charges. (The cases were those of Jose Padilla, a U.S. citizen, and Ali Saleh Kahlah al-Marri, a Yemeni national who was living in the U.S. as a pemanent resident alien. Padilla has since been convicted after a trial and Al-Marri has pleaded guilty.)

It is interesting to speculate as to what politics may (repeat, may) be involved here. To date, the Federal courts have been very averse to becoming involved in the disposition of Gitmo detainees (and Bagram is an even greater stretch). So far, review in habeas has been limited to whether there is a preponderence of evidence to hold detainees under the AUMF and Common Article 3. A fair probability is that SCOTUS would affirm the DC Circuit and hold that there is no judicial power to order detainees brought to the mainland US. That holding could be spun as supporting the view that detainees should not be brought to the mainland US for any purpose (including trial or imprisonment).

[jmm99]

does the right hand know what the left hand is doing ?

OK, Gitmo is to be closed on or about 1 Jan 2010 (roughly 6+ mos hence by my calendar). As part of that process, the Obama Administration’s Detention Task Force is assembling files on every prisoner remaining at the Navy prison in Cuba - a prerequisite to whether they should be released, transferred to US or elsewhere, or tried in Federal court.

In a hissy fit between the DoJ, detainees' lawyers and Judge Hogan, the legal question was access to the task force files. In the course of the argument, this exchange between the judge and the DoJ attorneys:

Government rebuffed on detainee files
Wednesday, June 10th, 2009 9:26 pm | Lyle Denniston
....
Hogan also suggested that the government’s fears of delaying the task force process were exaggerated. In fact, he said, the government could have complied earlier with the other judges’ orders, and not taken the extra time to seek the consolidated order.

Second-guessing the government’s estimate that it would take up to a year to satisfy all of the requests for information from the task force, Hogan said it could be done in six weeks if the government hired enough lawyers to process them.

Hogan reminded the government that the courts’ time demands were as heavy as those on the government and the task force.

If a year is required to assemble task force information, how does that square with a 1 Jan 2010 closure ?

-----------------
A second right hand - left hand lack of co-ordination was raised by Mike Rogers:

U.S. Lawmaker Says Obama Administration Ordered FBI to Read Rights to Detainees
The move is reportedly creating chaos in the field among the CIA, FBI and military personnel, according to Rep. Mike Rogers, R-Mich.
FOXNews.com
Thursday, June 11, 2009
....
A senior Republican on the House Intelligence Committee is accusing the Obama administration of quietly ordering the FBI to start reading Miranda rights to suspected terrorists at U.S. military detention facilities in Afghanistan.

The move is reportedly creating chaos in the field among the CIA, FBI and military personnel, according to Rep. Mike Rogers, R-Mich. The soldiers, especially, he says, are frustrated that giving high value detainees Miranda rights -- the right to remain silent, the right to an attorney -- is impeding their ability to pursue intelligence on the battlefield, according to a story first reported by the Weekly Standard.

"What I found was lots of confusion and very frustrated people on the front lines who are trying to, well, make Afghanistan successful for the United States and its allies," said Rogers, who serves on the House Intelligence Committee. ... [more in story]

Rogers usually does not go off half-cocked.

So far as I know, the Federal courts have not held that AQ-Taliban detainees have to be given Miranda warnings - nor do any DoD guidelines for detainees.

[Boondoggle]

JMM,

I watched the live feed of Gen Patreaus at CNAS this morning. Fox News asked about the miranda issue. He stated that the FBI is only doing that for selected prisoners. He implied that the vast majority were not being run through the process that could lead to Federal criminal prosecution. He did throw his support behind the work of the FBI. It'd be interesting to know what criteria they use to decide who gets the FBI treatment and who gets DoD or even CIA detentions? I wonder how many and who they are prepping for prosecution?

As to the political questions you raise, it's completely at its core political. This is a war, not a criminal enterprise, though they may be committing crimes in the direction of their war against. War being a continuation of political means, ultimately these are political questions, even if the courts have a role to play. To put it bluntly, I just finished the recent biography of Andrew Jackson where he (allegedly) scoffed at John Marshall and rhetorically stated "now that he has issued his judgement, have him enforce it!".

[jmm99]

from Boon...
I wonder how many and who they are prepping for prosecution?

From what the DoJ was telling Judge Hogan, we'll know in about a year or so - oops, that was only the Gitmo detainees they were speaking of - and the Miranda flap had to do with Bagmo.

I haven't the foggiest answer to your question. Does someone in DoJ ?

[Boondoggle]

More along my theory that the President has decided to implicitly tell Congress "go ahead and stop me". Political reality seemed to make them realize no way the uighars could come to the US, so he sends 4 to Bermuda... without telling the British government first. That had to be an interesting conversation between Clinton and Miliband.

British officials, however, expressed displeasure that they were not consulted about the transfer. A Foreign Office spokesperson in London questioned "whether this falls within [Bermuda's] competence or is a foreign affairs or security issue for which the Bermuda Government do not have delegated responsibility."

Secretary of State Hillary Rodham Clinton later discussed the matter with Foreign Secretary David Miliband to assuage British concerns.

http://www.washingtonpost.com/wp-dyn...l?hpid=topnews

[jmm99]

said Judge Colleen Kollar-Kotelly, as to the Guantanamo Review Task Force, which is make recommendations as to Gitmo detainees' future processing, and its Review Panel, which is to decide whether those recommendations should be implemented; both operating pursuant to Executive Order No. 13,492.

Judge Kollar-Kotelly's order is brief:

ORDERED that Respondents’ counsel shall have an affirmative obligation to ascertain whether the Guantanamo Review Task Force has made any recommendations regarding the disposition of Petitioners and, if it has, to notify the Court of the same. If a recommendation regarding the disposition of Petitioners has been made, Respondents’ counsel shall also have an
affirmative obligation to ascertain whether the Review Panel has made any decisions in connection with the recommendations and, if so, to notify the Court with the results of such decisions; it is further

ORDERED that the obligations imposed on Respondents’ counsel pursuant to this Order shall be immediate and ongoing.

Judge Kollar-Kotelly (see official bio and Wiki) is just ending her 7-year term as the Presiding Judge of the United States Foreign Intelligence Surveillance Court.

[jmm99]

The first topic is the upcoming trial in Federal District Court (Southern District of New York[*] ) of Ahmed Khalfan Ghailani, the Embassy Bomber, in this NY Times report.

The report's focus was mostly on three issues: (1) legal representation; the two JAG officers who represented Ghailani at Gitmo will probably assist in the proceedings; but two civilian lawyers (one a death penalty specialist) will take the lead; (2) death penalty (whether the DoJ will seek it - still undertermed); and (3) enhanced interrogations and torture allegations by Ghailani (still undetermined).

However, another issue was raised - timely trial - but very briefly:

Judge Kaplan also cited one lawyer’s suggestion that the charges be dismissed on grounds that Mr. Ghailani’s rights to a speedy trial were violated.

“It has certainly occurred to me that that is going to be an issue in this case,” the judge said. He added that he hoped to have the case tried some time next year — if it goes to trial.

The issue of timely trial would seem applicable to all Gitmo detainees brought before the Federal District courts to face criminal charges. Here are Judge Kaplan's brief bio and Wiki. The Obama administration may find that there are unexpected pitfalls in bringing these cases in Federal District courts as ordinary criminal cases.

------------------
The next topic is the NY Times database of Gitmo detainees, which you can search if interested.

The Detainees

Of the 779 people who have been detained at the United States military prison at Guantánamo Bay, Cuba, 544 have been transferred and 229 remain, according to analysis by The New York Times of documents from the Department of Defense. In addition, six detainees died while in custody. This interactive database includes information about the detainees, thousands of pages of government documents and links to court records and news media reports.

E.g., here are the pages for transferred, held and died - as to the last, all died at Gitmo during 2006-2009.

This is an interesting database (which I've mentioned before); and it gives you the original sources - which can be searched. For example, my search for Ghailani yielded three categories:

Ahmed Khalfan Ghailani
Ahmed Khalfan Ghailani is a citizen of Tanzania. He was captured in Pakistan in July 2004. He is one of 16 high-value detainees. He was transferred to the United States on June 9, 2009.

Documents for Ahmed Khalfan Ghailani
Ahmed Khalfan Ghailani is a citizen of Tanzania. He is one of 16 high-value detainees. He was transferred to the United States on June 9, 2009.

Documents for Mohammad Ahmed Abdullah Saleh al Hanashi
Mohammad Ahmed Abdullah Saleh al Hanashi was a citizen of Yemen. He died at Guantánamo on June 1, 2009.

The first two lead to many pages of Ghailani records. The third item (al Hanashi) leads to three records of this now dead man, where Ghailani ID'd him:

“Ghailani identified the detainee as being present at the al-Faruq Training Camp in Afghanistan where he underwent basic training in 1998 to 1999 before moving on to the front lines in Kabul, Afghanistan.”

“Ghailani is a Tanzanian al-Qaida operative who has been indicted in the 1998 U.”

This is a neat feature by the Times (so, hat tip).

-----------------------------
[*] My first appearance in a courtroom was in the Southern District - roughly 40 years ago. At that time, the Twin Towers were being constructed.

[Boondoggle]

including one/some related to speedy trial, that can presumably be employed across the board..... talk about a massive monkey wrench.

In fact at that point, I wonder if the Admin would scramble to get people back out of the country.... and I wonder how quick their attorneys would move to stop that. To get any senior detainees released on American soil for technical reasons is a worst case scenario for the President. I think they could survive a couple jury defeats (depending on who it was) but to lose that way would open them up to bipartisian attacks across the board, especially from the district(s) where they might get released.

I also wonder if with these types of signals, maybe the hold off on bringing anymore over until they clear these hurdles.... just in case?

[jmm99]

If a Gitmo detainee has a habeas case pending before the DC District or Circuit courts (not all Gitmo detainees are signed up for habeas review), an order prohibiting his transfer from Gitmo (to the US or elsewhere) is probably in effect. See posts #92 and #93 for discussion of one such order.[*]

I expect that any bad results re: the speedy trial issue would be blamed on the Bush II administration - jury defeats (not likely IMO) would be the Obama administration's problem.

Somehow, I cannot envision any added detainees being brought to Gitmo.

As to Ahmed Khalfan Ghailani, who obviously was transferred to US soil, he had no habeas case filed that I could find. So, a no-transfer order would not apply in his case.

----------------------
[*] Is it irony (or something else) re: the flap about transfer (to the US or elsewhere), where the courts in many cases have entered no-transfer orders.

[Boondoggle]

JMM, thanks for pointing out the habeas order. If I knew that at one time, I had forgotten it. As for the speedy trial, I think the blowback would be that the President unfairly hazarded his detention by unecessarily sending him to a criminal trial instead of continuing to detain him under other authority. I think the old lawyer's adage of "never ask a question that you don't already know the answer to" is at play here. Unless you know you can get this case to a jury with good facts, why hazard going to trial in the first place as long as you have other options? JMO.

[Boondoggle]

http://www.chicagotribune.com/news/l...,3984420.story

Sentence reduced from life to 20 years with parole possible after seven. I don't recall the facts of the underlying case in enough detail to say more.

[jmm99]

from the Chi Trib reporting the conviction.

Besides the E5 (Leahy), also involved were (from Boon's link):

Master Sgt. John E. Hatley, 40, of Texas, and Sgt. 1st Class Joseph P. Mayo, 27, of North Carolina -- as well as two others pleaded guilty or were convicted. All were from the Army's 1st Battalion, 18th Infantry Regiment.

"MSG" (I suspect 1SG is more accurate) Hatley was among the SGM selections last August.

This case seems to be a tie-in with the 2007 hissy fit between the New Republic and the Weekly Standard, etc., re: an article by Scott Thomas Beauchamp (Wiki, with sources), as summarized by a blogger last year, of 27 Aug and 2 Oct, 2008.

Pete Newell devoted his thesis to a discussion of this general problem (not this particular incident), which you will find linked here. COL Newell's thesis has the ironic (in light of this case) title: "Preparing the strategic sergeant for war in a flat world: Challenges in the application of ethics and the Rules of Engagement (ROE) in joint / multinational / multicultural operations". Unlike the media spin artists, COL Newell proposes some solutions.

Bad case - what else can you say ?

---------------------------
PS: agreed as to this:

I think the old lawyer's adage of "never ask a question that you don't already know the answer to" is at play here. Unless you know you can get this case to a jury with good facts, why hazard going to trial in the first place as long as you have other options?

Of course, neither one of us ever asked a question without knowing the answer - and never, ever asked one question too many.

[jmm99]

who was held at Gitmo until late 2007, when he was transferred to a Saudi terrorist rehab program; who was declared rehabilitated, and then jumped over the border to Yemen, where he again became an AQ officer. As reported in this thread at post #173.

Now, we have this from FOX:

Slaughter of Foreigners in Yemen Bears Mark of Former Gitmo Detainee, Say Experts
Saturday, June 20, 2009
By Jana Winter

The fate of three of nine foreigners abducted in Yemen last week is known — their bodies were found, shot execution style. The whereabouts of the other six — including three children under the age of 6 — remain a mystery.

But terrorism experts say their abductors and killers are almost certainly not a mystery. They say the crimes bear the mark of Al Qaeda, and they fear they are the handiwork of the international terror organization's No. 2 man in the Arabian Peninsula: Said Ali al-Shihri, an Islamic extremist who once was in American custody — but who was released from the U.S. detention center in Guantanamo Bay, Cuba.

And if al-Shihri is behind the gruesome murders and abductions, they say, it raises grave concerns that the scheduled January 2010 closing of the Guantanamo prison and the release of most of its prisoners to foreign countries will galvanize Al Qaeda and compromise American national security.

The nine foreigners — four German adults, three small German children, a British man and a South Korean woman — were abducted on June 12 after they ventured outside the city of Saada without their required police escorts, according to a spokesman from the Yemeni Embassy in Washington. Days later the bodies of Rita Stumpp and Anita Gruenwald, German nurses in training, and Eom Young-sun of South Korea were found shot execution style in the Noshour Valley in the province of Saada, an area known to be a hotbed of Al Qaeda activity. [much more in story] ...

It is ironic that Germany (not necessarily these 7 German innocents) has taken the lead legally (including some abortive legal proceedings) against the US position that AQ-Taliban can be detained under the Laws of War.

-------------------------------
His records are in the NY Times database here.

From 10 Dec 2004 CSRT - "The detainee is AQ and a Taliban associate." (giving reasons).

From 16 Jun 2005 CSRT - Gives pro & con reasons for detention (con reasons based on detainee's claims) - pros outweigh cons.

From 31 Mar 2006 CSRT - Similar to prior, but added reasons for continued detention - pros outweigh cons.

From 5 Jun 2007 CSRT - Reasons for continued detention are reduced by half (no reason for reduction given); reasons for release are the same as in previous.

From 13 Jun 2007 CSRT (separate record) - All material portions are redacted, including the decision itself.

This process in this case stinks. Period. So does the result we know today.

[Ron Humphrey]

Now, we have this from FOX:

Is that if history is any indicator there's a good chance one or more of those kids they haven't found are gonna show up in 3-5 years(if not sooner) brainwashed, hyper indoctrinated and fit to blow

This process in this case stinks. Period. So does the result we know today.

Amen to that

[jmm99]

The initial AP story (15 Jun 2009) had all 9 hostages killed, but so stated by the old stand-by Mr Anon:

9 Abducted Foreigners, Including 3 Children, Found Dead in Yemen
Monday, June 15, 2009

SAN'A, Yemen — Nine missing foreigners in Yemen have all turned up dead, a Yemeni official said Monday, apparently executed by their kidnappers in the impoverished nation in the Arabian peninsula.

The nine foreigners, including seven German nationals, a Briton and a South Korean, disappeared last week while on a picnic in the restive northern Saada region of Yemen.

The official, who spoke on condition of anonymity because he was not authorized to speak to the press, announced the discovery of the remaining six bodies Monday after three others had been found mutilated earlier in the day. .....

Whichever the facts once all this comes out, analysis of this result does not change qualitatively.

Here are two reactions from the Kingdom, here and here:

Al-Oufi, Al-Shihri betrayed our trust: Families, friends
By Abdullah Al-Oraifij and Khaled Al-Shalahi

RIYADH/MADINA – The family members and friends of ex-Gitmo detainees, Muhammad Al-Oufi and Sa’eed Al-Shihri, who resurfaced last week in Yemen as Al-Qaeda operatives despite having undergone a rehabilitation program in Saudi Arabia, have denounced them as “irreversible deviant members of society.”

Al-Oufi’s family has accused his “bad” compatriots of dragging him once again to the abyss of terrorism. After his return from Guantanamo where he spent seven years, Al-Oufi swore that he would never return to the deviant thought, his family said.

and

Shihri’s father damns him for returning to Al-Qaeda
By Abdullah Al-Oraifij

RIYADH – The father of ex-Gitmo detainee Sa’eed Al-Shihri who has seemingly surfaced in Yemen as a senior Al-Qaeda operative despite having had undergone a rehabilitation program in Saudi Arabia, says his son “is a deviant member of society who must be removed.”

Not sure what dad means by "removed" - probably different from my thoughts (which today are not in a be kind to maneaters mode).

[Blackjack]

The initial AP story (15 Jun 2009) had all 9 hostages killed, but so stated by the old stand-by Mr Anon:



Whichever the facts once all this comes out, analysis of this result does not change qualitatively.

Here are two reactions from the Kingdom, here and here:



and



Not sure what dad means by "removed" - probably different from my thoughts (which today are not in a be kind to maneaters mode).

He means killed in a way beffiting his crimes. Usually by the chopping off of opposing limbs, then beheading.

[jmm99]

with this aspect of the Kingdom's justice - applied in this case:

from Blackjack
He means killed in a way beffiting his crimes. Usually by the chopping off of opposing limbs, then beheading.

but "removed" from society could (I don't say it does) mean some form of imprisonment with rehabilitation.

PS: The Kingdom has modernized the manner of punishment in at least one area. Theft - chop off the hand that steals. Now (as I understand it), the hand is surgically removed under anesthesia. Same result; better PR ?