Discourse.net

Ungood. Double-Plus Ungood

Obama Justice Department Urges Dismissal of Another Torture Case

In another move that suggests the Obama Department of Justice is not making many big policy breaks with its predecessor when it comes to the legal rights of Guantanamo Bay detainees, the department filed a brief renewing the government’s motion to dismiss the case of Rasul v. Rumsfeld.

…

According to their legal complaint, Shafiq Rasul, Asif Iqbal and Rhuhel Ahmed claim they traveled to Afghanistan in October 2001 to offer humanitarian relief to civilians. In late November, they were kidnapped by Rashid Dostum, the Uzbeki warlord and leader of the U.S.-supported Northern Alliance. He turned them over to U.S. custody – apparently for bounty money that American officials were paying for suspected terrorists. In December, without any independent evidence that the men had engaged in hostilities against the United States, U.S. officials sent them to Guantanamo Bay. Over the next two years, they claim — as does a fourth British man — that they were imprisoned in cages, tortured and humiliated, forced to shave their beards and watch their Korans desecrated, until they were returned to Britain in 2004. None were ever charged with a crime.

…

Today, the Justice Department filed a brief arguing, as it did in Padilla’s case against Yoo, that government officials are not liable for torture, abuse, denial of due process or religious rights, because the right of Guantanamo prisoners not to suffer those abuses at the hands of the U.S. government was not clearly established at the time.

That would seem to contradict previous statements by President Obama and Attorney General Eric Holder that torture and other abuses are clearly illegal, now and always.

Yuk.

Petition for a US Truth Commission

The Bush Truth Commission web site, sponsored by Sen. Patrick Leahy, invites you to sign their online petition.

Some background at Kos.

The Incompetence of Evil

Gitmo: There Are No Files.

The Bush people told us over and over that the people held at Gitmo were super-dangerous. That’s why they couldn’t release them, or even try them in the US. (Judges who reviewed selected cases in the main didn’t agree, but put that aside.)

Now we learn the farcical basis on which decisions to hold people were being made:

“President Obama’s plans to expeditiously determine the fates of about 245 terrorism suspects held at Guantanamo Bay, Cuba, and quickly close the military prison there were set back last week when incoming legal and national security officials — barred until the inauguration from examining classified material on the detainees — discovered that there were no comprehensive case files on many of them.

Instead, they found that information on individual prisoners is “scattered throughout the executive branch,” a senior administration official said. The executive order Obama signed Thursday orders the prison closed within one year, and a Cabinet-level panel named to review each case separately will have to spend its initial weeks and perhaps months scouring the corners of the federal government in search of relevant material.

Several former Bush administration officials agreed that the files are incomplete and that no single government entity was charged with pulling together all the facts and the range of options for each prisoner.

Beyond my darkest imaginings.

Gitmo Today

A day late, but even so…

And, more importantly, here are four executive orders signed today.

• Review And Disposition Of Individuals Detained At The Guantánamo Bay Naval Base And Closure Of Detention Facilities
• Review Of Detention Policy Options
• Ensuring Lawful Interrogations
• Review of the Detention of Ali Saleh Kahlah al-Marri

These are major, major, welcome developments.

Only sour note: Adm. Dennis Blair can’t bring himself to call waterboarding “torture”. [Link improved]

Whitehouse.gov Doesn't Like My Privacy Settings and Has Nothing on Guantanamo

Odd thing: when I go to Whitehouse.gov and allow Flash, the site complains about my privacy settings.

Click for a larger image.

The error message says,

The page did not process successfully because of the following:
• Field ‘Email’ is invalid
• Field ‘Zip Code’ is empty

Second odd thing: I wanted the full text of the order postponing trials at Guantanamo, the one that caused the following motion to be filed in Guantanamo,

In order to permit the newly inaugurated President and his administration time to review the military commission process, generally, and the cases currently pending before the military commissions, specifically, the Secretary of Defense has, by order of the President directed the chief prosecutor to seek continuances of 120 days in all pending case.

The Secretary of the Defense issued his order to the Chief Prosecutor in order to provide the administration sufficient time to conduct a review of detainees currently held at Guantanamo Bay, Cuba to evaluate the cases of detainees not approved for release or transfer to determine whether prosecution may be warranted for any offenses those detainees may have committed, and to determine which forum best suits any future prosecution.

But when I search for “Guantanamo” at whitehouse.gov I get … nothing.

Text of Judge Leon's Remarks in Guantanamo Habeas Case

Thanks to SCOTUSblog, we have Documents on Boumediene detainee ruling including a full transcript of the remarks by Judge Leon, that I mentioned previously (Judge Grants Writ of Habeas Corpus for 5 out of 6 Gantanamo Detainees)

Here’s the key excerpt from the transcript, significantly reformatted for easier reading:

Now, I want to raise a note of caution to those who may be listening or to those who will read my ruling. This is a unique case. Few, if any others, will be factually like it. Few, if any others, will be factually like it. Nobody should be lulled into a false sense that all of the Government’s cases will look like and be like this one. If there is any lesson that the parties and the Court have learned, these cases are unique and the habeas process must be flexible.

The practical effect of the Supreme Court’s decision to superimpose the habeas process into the world of intelligence gathering is to create a virtually limitless complex of novel and difficult questions. As a result, the precedential value, if any, should be and is — should be and is limited to these cases.

One last point I would like to make.

The Court appreciates fully that the Government has a right to appeal its decision as to these five detainees whose petitions I have granted. I have a right, too, to appeal to the senior-most leadership at the Department of Justice, Department of Defense, and the CIA and other intelligence agencies. My appeal to them is to strongly urge them to take a hard look at the evidence, both presented and lacking, as to these five detainees. Seven years of waiting for our legal system to give them an answer to a question so important, in my judgment, is more than plenty.

The appellate process for these five detainees would, at a minimum, constitute another 18 months to two years of their lives. It seems to me that there comes a time when the desire to resolve novel, legal questions and decisions which are not binding on my colleagues pales in comparison to effecting a just result based on the state of the record.

Detainees’ counsel will undoubtedly file an appeal with regard to my decision denying Mr. Bensayah’s petition. That appeal will provide more than enough opportunity for both sides to challenge the novel, legal rulings that this Court has had to make.

I appeal to the senior leadership of those agencies to bring to an end this process as to these five detainees. We will stand in recess.

Strong stuff.

Judge Grants Writ of Habeas Corpus for 5 out of 6 Gantanamo Detainees

Judge Orders Five Detainees Freed From Guantánamo

In the first hearing on the government’s justification for holding detainees at the Guantánamo Bay detention camp, a federal judge ruled Thursday that five Algerian men were held unlawfully for nearly seven years and ordered their release.

…

Judge Leon, in a ruling from the bench, said that the information gathered on the men had been sufficient to hold them for intelligence purposes, but was not strong enough in court.

“To rest on so thin a reed would be inconsistent with this court’s obligation,” he said. He directed that the five men be released “forthwith” and urged the government not to appeal.

Judge Leon, who was appointed by President Bush, had been expected to be sympathetic to the government. In 2005, he ruled that the men had no habeas corpus rights.

I gather from people who were there that the Judge was fairly impassioned in his request to the government lawyers to let this case drop. That’s really unusual, and suggests that they really had no case.

Judge Leon has issued an opinion (warning: 3.1 MB scanned .pdf), which skirts the actual evidence for security reasons, but is still good reading.

This is a historic moment — the rule of law grinds slowly, but maybe it’s got some life in it yet.

Gitmo In America

Just plopped into my mailbox:

New Military Documents Reveal Unlawful Guantánamo Procedures Were Also Applied On American Soil

According to newly released military documents, the Navy applied lawless Guantánamo protocols in detention facilities on American soil. The documents, which include regular emails between brig officers and others in the chain of command, uncover new details of the detention and interrogation of two U.S. citizens and a legal resident – Yaser Hamdi, Jose Padilla and Ali al-Marri – at naval brigs in Virginia and South Carolina.

The documents were obtained under the Freedom of Information Act by the Allard K. Lowenstein International Human Rights Clinic at Yale Law School and the American Civil Liberties Union.

According to the documents, Navy officers doubted the wisdom of applying Guantánamo rules on American soil. In particular, officers expressed grave concern over the effects of the solitary confinement imposed upon the three men detained at the brigs, a practice that was considered to be even more extreme than the isolation imposed at Guantánamo. Navy officers also exhibited frustration with the Defense Department’s unwillingness to provide the detainees with access to legal counsel or any information about their fates. The documents clearly show that the standard operating procedure developed for Guantánamo Bay governed every aspect of detentions at the two bases inside the United States. Though Navy personnel tried several times to improve the harsh conditions under which Hamdi, Padilla and al-Marri were detained, senior Defense Department officials repeatedly denied the requests.

The press release

The newly released documents

The Guantánamo Standard Operating Procedure

More on Gitmo Prosecutor Resigns (UPDATED)

A few days ago I posted ACLU: Gitmo Prosecutor Resigns In Protest. We have more details and further developments now, once again via the ACLU, at Honor Bound.

Not a pretty sight. If there’s any honor here, it’s with the JAGs.

Update: Read the full, sworn, statement by LTC Darrel J. Vandeveld.

ACLU: Gitmo Prosecutor Resigns In Protest

via ACLU Blog: Because Freedom Can’t Blog Itself: Official Blog of the American Civil Liberties Union [link fixed]:

We learned late today that Army Lieutenant Colonel Darrel Vandeveld, the lead prosecutor in the military commissions case against Mohammed Jawad, has resigned in protest because the prosecution team was not providing the defense evidence that could indicate Jawad’s innocence. Jawad was a teenager when he was captured in Afghanistan and he’s one of the two youngest prisoners at Guantánamo.

I’ve said it before and will say it again: the JAGs are the heroes of the “war against terror”.

IntLawGrrls Compare Party Platforms on Torture, Gitmo

IntLawGrrls: A Tale of 2 Platforms is a comparison of the two parties’ platforms on the issues of torture and the Guantanamo Bay prison camp.

I know that when a candidate is weak in his own party like McCain, or faces a powerful minority like Obama did with Clinton, platforms often are at least as much a reflection of the party activists than of the candidates’ own views, but even so it’s pretty telling.

How to Close Gitmo

Hot off the press: Human Rights First's new plan on closing Guantanamo. "How to Close Guantanamo: Blueprint for the Next Administration". HRF offers a step-by-step strategy for closing Gitmo, designed to minimizes risk and ensure federal court prosecutions where appropriate.

Zealous Advocacy

This may epitomize zealous advocacy: Covington Partner Demonstrates Treatment of Detainees.

These are not normal times, and they call for unusual responses.

The Snark IS a Boojum

The DC Circuit has now issued a redacted version of Judge Garland’s opinion for the Court in Parhat v. Gates. It’s worth a read.

Notably, the Court accepts the government’s view of its own powers and of the standard of proof required in a Combatant Status Review Tribunal (CSRT) and nonetheless holds that the government failed to produce meaningful evidence to support its claim that Parhat and other Uighers were in a group “associated” with al Qaida, or the Taliban.

The decision points to the very tentative (and unsourced!) language in the documents proferred to the CSTR

… the principal evidence against Parhat regarding the second and third elements of DOD’s definition of enemy combatant consists of four government intelligence documents. The documents make assertions — often in haec verba — about activities undertaken by ETIM, and about that organization’s relationship to al Qaida and the Taliban. The documents repeatedly describe those activities and relationships as having “reportedly” occurred, as being “said to” or “reported to” have happened, and as things that “may” be true or are “suspected of” having taken place. But in virtually every instance, the documents do not say who “reported” or “said” or “suspected” those things. Nor do they provide any of the underlying reporting upon which the documents’ bottom-line assertions are founded, nor any assessment of the reliability of that reporting. Because of those omissions, the Tribunal could not and this court cannot assess the reliability of the assertions in the documents. And because of this deficiency, those bare assertions cannot sustain the determination that Parhat is an enemy combatant.

…

Insistence that the Tribunal and court have an opportunity to assess the reliability of the record evidence is not simply a theoretical exercise. Parhat contends that the ultimate source of key assertions in the four intelligence documents is the government of the People’s Republic of China, and he offers substantial support for that contention. Parhat further maintains that Chinese reporting on the subject of the Uighurs cannot be regarded as objective, and offers substantial support for that proposition as well.

…

The government does not dispute that DOD’s standards and procedures require that the CSRT be able to assess the reliability of the record evidence. See Unclassified Oral Arg. Tr. 39. It argues, however, that the Tribunal was able to do so here — for two reasons.

First, the government suggests that several of the assertions in the intelligence documents are reliable because they are made in at least three different documents. We are not persuaded. Lewis Carroll notwithstanding, the fact that the government has “said it thrice” does not make an allegation true. See LEWIS CARROLL, THE HUNTING OF THE SNARK 3 (1876) (“I have said it thrice: What I tell you three times is true.”). In fact, we have no basis for concluding that there are independent sources for the documents’ thrice-made assertions. To the contrary, as noted in Part III, many of those assertions are made in identical language, suggesting that later documents may merely be citing earlier ones, and hence that all may ultimately derive from a single source. And as we have also noted, Parhat has made a credible argument that — at least for some of the assertions — the common source is the Chinese government, which may be less than objective with respect to the Uighurs. Other assertions in the documents may ultimately rely on interview reports (not provided to the Tribunal) of Uighur detainees, who may have had no first-hand knowledge and whose speculations may have been transformed into certainties in the course of being repeated by report writers. Second, the government insists that the statements made in the documents are reliable because the State and Defense Departments would not have put them in intelligence documents were that not the case. This comes perilously close to suggesting that whatever the government says must be treated as true, thus rendering superfluous both the role of the Tribunal and the role that Congress assigned to this court. We do not in fact know that the departments regard the statements in those documents as reliable; the repeated insertion of qualifiers indicating that events are “reported” or “said” or “suspected” to have occurred suggests at least some skepticism. Nor do we know whether the departments rely on those documents for decisionmaking purposes in the form in which they were presented to the Tribunal, or whether they supplement them with backup documentation and reliability assessments before using them to take actions of consequence.

(footnotes removed)

This was a very mixed panel, including arch-conservative Chief Judge Sentelle. When judges from across the spectrum are quoting Lewis Carrol to the government, there’s a sign that the jig is up.

An Extraordinary Statement About Torture, Honor, Law, and Country

I’ve said many times before that the JAGs are heroes of the post-9/11 military. Here’s another extraordinary example of this: the closing argument of an Air Force Major, David J. R. Frakt, in Favor of Dismissal of the Case Against Mohammad Jawad (6/19/2008) in a ‘combat status review tribunal’ [Note 6/24/08: commentator mremer says below that this was a merits hearing, not a CSRT, and based on this aclu blog post, I think he’s right] held at Guantánamo. (Transcript via the ACLU.)

There ought be be a medal for this sort of princpled powerful advocacy in service to the nation. Please read it. I’ve reprinted the full text below to make it easier. (If you care — I’m not sure how relevant it is under the circumstances — you can learn more about the facts of the Mohamed Jawad case from FreeDetainees.org.)

Update: Here’s some background on Major and Professor David Frakt.

On Feb 7, 2002, President Bush issued an order. The order stated, in pertinent part “I accept the legal conclusion of the Department of Justice and determine that Common Article 3 of Geneva does not apply to either al Qaeda or Taliban detainees.”

“I determine that the Taliban detainees do not qualify as prisoners of war…al Qaeda detainees also do not qualify as prisoners of war.”

“Our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment… As a matter of policy the United States Armed Forces shall continue to treat detainees humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”

With these fateful and ill-advised words, President Bush, our Commander-in-Chief, perhaps unwittingly, perhaps not, started the U.S. down a slippery slope, a path that quickly descended, stopping briefly in the dark, Machiavellian world of “the ends justify the means,” before plummeting further into the bleak underworld of barbarism and cruelty, of “anything goes,” of torture. It was a path that led inexorably to the events that brings us here today, the pointless and sadistic treatment of Mohammad Jawad, a suicidal teenager.

President Bush’s words were important, and deserve special attention. For those of us in the military who have faithfully attended our annual Law of Armed Conflict training, or in my case, have given the training many times, the Geneva Conventions and humane treatment were synonymous, they were one and the same. The Geneva Conventions represented the baseline, they embodied the determination of the world to make war a more humane enterprise, to prevent a descent into wholesale barbarity, as had occurred during the Second World War. But now we were being told that humane meant something else, something less, than the Geneva Conventions. And we were being told that we could act inconsistently with the Geneva Conventions, when military necessity demanded it. Those of us who were familiar with the Geneva Conventions, whose job it was to know them, were puzzled and deeply troubled by the President’s order and had serious forebodings about the implications of such a decision. We understood that there were no gaps in Geneva, there were was no one who fell outside their protection, that Common Article 3 applied to everyone.

But the civilian political appointees of this administration intentionally cut out the real experts on the law of armed conflict, the uniformed military lawyers, the JAGs, were out of the loop, for fear that their devotion to the Geneva Conventions might pose an obstacle to their intended course of action. The State Department, led by Colin Powell, tried to raise a red flag, but to no avail. Instead, the administration chose to rely on the infamous torture memos by John Yoo, Robert Delahunty and Jay Bybee. These secret memos attempted to redefine torture for the purpose of providing legal cover for administration officials who approved the use of patently unlawful tactics. These legal opinions, now disgraced, disavowed, and relegated to the scrapheap of history where they belong, laid the groundwork for the wholesale and systematic abuse of detainees which ultimately ensnared my client, Mohammad Jawad.

I’m sure that all of these people, the President included, thought they were doing what was best. But what sometimes appears to be in the interests of America at first glance, upon further reflection reveals itself not to be. Interning Japanese-Americans during World War II perhaps seemed like a good idea at the time, but in hindsight we can see that it was a terrible injustice, inconsistent with American ideals and utterly unconstitutional. It is a shameful episode in our history, a xenophobic overreaction. The conscious, deliberate decision to abandon the Geneva Conventions and the entire fiasco that is Guantanamo will undoubtedly be viewed by historians as an even more disgraceful chapter in our history.

The Feb 7, 2002, order of President Bush invited the rule of law to be circumvented. Even though the President paid lip service to humane treatment, by stating that detainees were not legally entitled to be treated humanely, and by his qualification of “to the extent appropriate and consistent with military necessity” the implication was clear — it was only policy to be humane, not a legal requirement, and there would be no legal consequences to those who didn’t treat detainees humanely, if there was some military justification for it. Of course, during a “global war,” it is possible to rationalize almost anything under the general rubric of military necessity. After all, if there is even a slight possibility that some military advantage might be gained by some course of action, don’t we owe it to our troops to do it? If there is even a minute chance that some sliver of intelligence might be gleaned about an impending terrorist attack, don’t we owe it to the American people to do everything in our power to extract it? The obvious answer to most of those working in detainee operations at Guantanamo and elsewhere was “Yes.”

Adding to the pervasive atmosphere of lawlessness in the early days of Guantanamo was the administration’s assertion that the detainees could be held indefinitely without charge, without access to counsel, without any recourse to challenge their detention. The administration asserted that the detainees were beyond the reach of any federal court and were not eligible for habeas corpus, a hallowed right guaranteed by the founding fathers of this great country. In effect, the administration created a legal black hole at Guantanamo, a policy universally decried by our even our staunchest allies in the war on terror, but steadfastly defended by the administration.

If there was any doubt that the President intended unlawful tactics to be used, all doubt was erased when Secretary of Defense Rumsfeld authorized, on Dec 2, 2002, numerous extra-legal special interrogation techniques. These techniques and how they were developed and utilized were the subject of hearings before the Senate Armed Service Committee yesterday and are described in detail in the book Torture Team, which I have attached to this motion. I’m sure Phillipe Sands would be honored to have his book included in the record of this commission.

Eventually, cooler and wiser heads started to inject some rationality into the treatment of the Guantanamo detainees. Unsung heroes like Alberto Mora, Navy General Counsel, and Admiral Jane Dalton, and the service TJAGs Gen Rives, Gen Romig, fought vigorously for the restoration of Geneva. But it ultimately took the intervention of the Supreme Court to restore the rule of law to Guantanamo. The Court intervened and made it clear that the Geneva Conventions did apply to detainees at Guantanamo, and that they did have the right to habeas corpus, a right that Congress has twice, unsuccessfully, attempted to take away. This fight to restore the rule of law took time, years in fact, in which the detainees of Guantanamo continued to suffer indignity and inhumanity. It was not until July 2006 when the Deputy Secretary of Defense Gordon England issued a memorandum stating that “common Article 3 of the Geneva Convention applies as a matter of law“ to the treatment of detainees held by the Department of Defense, and that the “humane treatment [is] the overarching requirement of Common Article 3.” Unfortunately, by then, the damage had already been done, both to the detainees and to the reputation of the United States as a law-abiding country.

America is a nation founded on a reverence for the rule of law. We should never forget that when we take an oath to enlist or be commissioned as an officer in the United States Armed Forces, we do not swear to defend the United States, we swear “to support and defend the Constitution of the United States against all enemies, foreign and domestic.” The Oath of Office for the President contains similar words: “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” Tragically, under the undeniably heavy pressure to defend Americans from terrorist attack, some of our military and civilian leaders lost sight of their obligation to defend the Constitution as well.

Under the Constitution all men are created equal, and all are entitled to be treated with dignity. No one is “undeserving” of humane treatment. It is an unmistakable lesson of history that when one group of people starts to see another group of people as “other” or as “different,” as “undeserving” as “inferior,” ill-treatment inevitably follows. In the Global War on Terror generally and in the detention camps of Guantanamo especially, the detainees were seen as “terrorists,” as “the worst of the worst” something less than human, and were treated accordingly. After six and a half years, we now know the truth about the detainees at Guantanamo: some of them are terrorists, some of them are foot soldiers, and some of them were just innocent people, caught in the wrong place at the wrong time. But the detainees at Guantanamo have one thing in common — with each other, and with us — they are all human beings, and they are all worthy of humane treatment. We should also never forget that no one in Guantanamo has been convicted of a single crime and that even in these deeply flawed military commissions, they are entitled to a presumption of innocence.

Throughout the Global War on Terror we have heard repeatedly from our military and civilian leaders that this was a new kind of war, a war that requires new methods, new ideas, “thinking outside the box.” So that is what the highly creative and motivated people at Guantanamo did, they abandoned the tried and true and lawful methods of Army Field Manual 34-52 and wrote a new playbook, a playbook that included intimidation with dogs, sexual humiliation, and sleep deprivation. These and other methods were employed at Guantanamo and, as the Schlesinger report put it, migrated to Abu Ghraib, where they resulted in the shocking conduct portrayed in the infamous photographs. The Secretary of Defense said “take the gloves off” and the soldiers and sailors of Guantanamo saluted smartly and said, “Yes, Sir!” In fact, many of the illegal and abusive “enhanced” interrogation techniques were personally approved for use by the Secretary of Defense; other techniques, like the frequent flyer program, were simply invented on the fly.

The public revelation of the events at Abu Ghraib on 60 Minutes II in late April 2004, caused the Department of Defense to go into full damage control mode. As part of the damage assessment, Secretary Rumsfeld dispatched the Navy Inspector General, Vice Admiral Church, to Guantanamo to evaluate the treatment of detainees there. He visited Guantanamo from May 5 to May 7, 2004, and reported back to the Secretary and to the press that there was virtually no detainee abuse at Guantanamo, and that everything was in order. Gen Hood was running a tight ship. Detainees received great treatment. Incredibly, the very day that Admiral Church was investigating conditions at Guantanamo and finding the treatment of detainees to be so wonderful, detention officials at Guantanamo ordered the initiation of the frequent flyer program on Mohammad Jawad. Before the wheels of Admiral Church’s plane were even off the Guantanamo runway, Mohammad Jawad’s arms and legs were being shackled in preparation for the first of 112 moves up and down the hall of L Block, every 3 hours for the next 14 days. While Jawad was being shackled for the first of these moves, back on Capitol Hill, Secretary of Defense Rumsfeld was testifying before the Senate and House Armed Services Committees, reassuring the nation that the abuse at Abu Ghraib was isolated to a few rogue guards. When Secretary Rumsfeld testified before the HASC on May 7, 2004, the day the torture of Mohammad Jawad commenced, he told Congress, in reference to those detainees who had been abused at Abu Ghraib, Quote “I am seeking a way to provide appropriate compensation to those detainees who suffered such grievous and brutal abuse and cruelty at the hands of a few members of the U.S. military. It’s the right thing to do.” Today, the government takes a decidedly different tack. They deny the suffering of Mr. Jawad, accusing him of being weak. And they are attempting to reward him by pressing forward with the first war crimes trial against a child soldier in the history of the civilized world.

Major General Hood the JTF-GTMO Commander who took command in March 2004, states that he ordered the frequent flyer program stopped in late March 2004. He says he did not authorize and would not have authorized the program to be administered to Mohammad Jawad. Gen James T. Hill, the Southcom Commander, the person to whom Maj Gen Hood reported directly, states that he did not authorize the frequent flyer program, did not know about it, and that is was contrary to his orders which required prior approval for sleep deprivation and limited it to four days. The Joint Detention Group Commander, Maj Gen Cannon disavows any knowledge of Mr. Jawad’s treatment, in fact, MG Cannon seems to have developed a very convenient case of amnesia. The Joint Intelligence Group Director, Esteban Rodriguez, doesn’t know about Jawad’s treatment specifically, but states that there was a second, unauthorized frequent flyer program carried out by the Joint Detention Group used as a form of disciplinary measure. He said, as did Maj Gen Hood, that there was no special effort to collect intelligence from Mr. Jawad, that he was not believed to possess any valuable intelligence. This is borne out by the fact, at least based on the information provided to me by the government, that no interrogations of Mr. Jawad took place at or near the time that he was being tortured. Thus, the most likely scenario is that they simply decided to torture Mr. Jawad for sport, to teach him a lesson, perhaps to make an example of him to others. Whatever the reason, it was a direct violation of MG Hood’s orders, and a grave breach of the Geneva Convention and the Convention against Torture.

According to MG Hood, the first he learned of this is when I informed him a couple of weeks ago. He was provided the DIMS report, the motion, and the spreadsheet that I prepared. What was his reaction? A resounding thud of indifference. In fact, it took an order from you, your honor, to even get him to talk me about it. Here was a Major General in the Army who has just learned that a detainee was subjected to grave abuse, on his watch, in direct violation of his orders. One would have expected him to go through the roof, to order heads to roll, to launch an immediate investigation and he couldn’t even be bothered. Quite a contrast from the way General Hartmann reacted when he thought his orders weren’t being followed.

As for MG Cannon, he was similarly apathetic, if not more so about the plight of Mohammad Jawad. It is an absolute disgrace that this officer has been promoted twice after allowing a suicidal teenager to be subjected to this kind of abuse in his detention facility. It is my recommendation that charges be preferred against MG Cannon under the UCMJ for cruelty, maltreatment and abuse, dereliction of duty, and violation of a lawful order at the earliest opportunity. He was the Commander of the Detention Group. He completely and utterly failed to prevent the flagrant abuse of a detainee under his protection. It is high time that someone in a position of authority be held accountable, and not just the guards who were carrying out orders this time.

Why was Mohammad Jawad tortured? Why did military officials choose a teenage boy who had attempted suicide in his cell less than 5 months earlier to be the subject of this sadistic sleep deprivation experiment? Not that anything would justify such treatment, of course, but at least in the case of the other detainees known to have been subjected to sleep deprivation, they were believed to possess critical intelligence that might save American lives. Unfortunately, we may never know. I’ve asked to speak to the guards who actually carried out the program, and I’ve been denied. In the absence of information to the contrary, which the government would surely provide if it existed, we are left to conclude that it was simply gratuitous cruelty.

The government admits that Mohammad Jawad was treated “improperly,” but offers no remedy. We won’t use any evidence derived from this maltreatment, they say, but they know that there was no evidence derived from it because the government didn’t even bother to interrogate him after they tortured him. Exclusion of non-existent evidence is not a remedy. Dismissal is a severe sanction, but it is the only sanction that might conceivably deter such conduct in the future.

February 7, 2002. America lost a little of its greatness that day. We lost our position as the world’s leading defender of human rights, as the champion of justice and fairness and the rule of law. But it is a testament to the continuing greatness of this nation, that I, a lowly Air Force Reserve Major, can stand here before you today, with the world watching, without fear of retribution, retaliation or reprisal, and speak truth to power. I can call a spade a spade, and I can call torture, torture.

Today, Your Honor, you have an opportunity to restore a bit of America’s lost luster, to bring back some small measure of the greatness that was lost on Feb 7, 2002, to set us back on a path that leads to an America which once again stands at the forefront of the community of nations in the arena of human rights.

Sadly, this military commission has no power to do anything to the enablers of torture such as John Yoo, Jay Bybee, Robert Delahunty, Alberto Gonzales, Douglas Feith, David Addington, William Haynes, Vice President Cheney and Donald Rumsfeld, for the jurisdiction of military commissions is strictly and carefully limited to foreign war criminals, not the home-grown variety. All you can do is to try to send a message, a clear and unmistakable message that the U.S. really doesn’t torture, and when we do, we own up to it, and we try to make it right.

I have provided you with legal authority for the proposition that you have the power to dismiss these charges. I can’t stand before you and say that you are legally required to do so. But I can say that that it is a moral imperative to do so, and I ask that you do so.

Honor, Justice AWOL in Today's Pentagon

Triumph of Newspeak at the Pentagon: telling the truth is considered dishonorable behavior.

Colonel Says Speaking Out Cost a Medal

[The former chief military prosecutor for terrorism trials at Guantanamo Bay, Air Force Col. Morris] Davis’s dispute with Air Force Brig. Gen. Thomas W. Hartmann resulted in a military judge disqualifying Hartmann in the case of Salim Ahmed Hamdan — an action that has led other military defense lawyers to file similar motions in cases against five men accused of taking part in the conspiracy surrounding the Sept. 11, 2001, attacks. An e-mail Davis wrote to defense lawyers on Tuesday, in which he said he would not cooperate in future cases, was released as part of such a motion yesterday.

Davis wrote that Pentagon officials notified him that he did “not serve honorably” as top prosecutor and would be denied [a] medal. Davis said he fears other reprisals before his scheduled retirement this year, despite a military judge’s order that no one who testified on the matter face adverse actions.

Meanwhile, the Pentagon also dismissed a judge in a different Guantanamo trial, apparently because he was not compliant enough with prosecution demands that the proceedings begin before the November election. Installing a new judge will undoubtedly increase the risk that the whole proceeding will look like a show trial, but at least the show may start on schedule.

Isn't It Time to Stop (Guantanamo Dept.)

(via The Guantanamo Blog)

Close Guantanamo Now

The ACLU has the right answer for the problem of the Guantanamo camp: Close Guantanamo and outlaw indefinite detention.

One way to achieve this would be to pass the “Guantanamo Bay Detention Facility Closure Act of 2007,” S.1469. The bill, introduced by Senator Tom Harkin, would close the facility within 120 days and send charged or sentenced detainees to the military’s maximum security prison at Fort Leavenworth. The remaining detainees would be sent to their home countries or other countries that will not torture or abuse them.

I’m told that all the major Presidential candidates have taken a position on Guantanamo. Sen. Obama regularly calls to close Guantanamo and restore habeas corpus, and Sen. Clinton often says something similar. As yet, however, neither Sens. Clinton, Obama nor McCain have not signed on as co-sponsors of S. 1469. (Clinton has signed on to a Feinstein bill that closes Guantanamo. Unsurprisingly, given the author, the billcreates new problems by authorizing indefinite detention without charge.)

The ACLU is making today “Close Guantanamo Day”. Below I reprint their press release on it. There will also be a “Rush Hour Vigil” this afternoon at 5pm near South Com. I won’t be able to make it, but Linda has details. And there are other events around the country.

I still hold to what I wrote in October 2003, in Guantanamo: Our Collective Shame:

As citizens we all bear a degree of collective responsibility for what our government does in our name. That responsibility is greater when we are or should be on notice. And thus, we are all responsible for what is happening in Guantanamo detention camps.

We are collectively responsible for what is happening in Camp Delta and Camp Iguana (the latter holds children). It is, or it should be, a matter of shame that our government chose to confine the Camp Delta prisoners in solitary, indefinitely, without news or the prospect of having their cases determined in the foreseeable future and where the policy is “We interrogate seven days a week, 24 hours a day.” (Interrogations, however, are limited [sic] “to no more than 16 straight hours” straight at one go.) There is no right to speedy trial (or other Geneva-convention-style hearing), or even to a trial. If and when trials do begin, there will be no right to to a proper attorney-client relationship even though the trials can end in the death penalty. Nor will there be a right to appeal the initial tribunal’s verdict to a neutral court staffed by judges with the neutrality of perspective that comes from life tenure.

As of a year ago, the BBC was reporting at least 30 suicide attempts out of a prison population of 600. While it’s possible that there is something about the population of detainees that predisposes them to suicide attempts, it’s also quite possible that it’s something about the conditions and, if so, conditions that bad arguably amount to illegal torture under international law. On the other hand, the rate of suicide attempts may be down as a recent CBS report put the total at 32.

This rich nation of ours can afford to give each detainee a first class fair trial, if it wanted to. In so doing it would send a healthy message about our values to the world. The decision not do so is a choice. By making that choice the Administration is sending a terrible message to the world. It’s also a really lousy precedent.

I also believe that it’s constitutionally wrong. Our government is, or should be, an entity subject to the Constitution. I do not read that document to allow our government to act lawlessly and without review. And certainly not indefinitely.

…

A government sure of itself, and confident of the rightness of its actions, would not hide the detainees in legal limbo. To do so suggests a meanness of spirit at best, a tendency to lawlessness and something to hide at worst, and a tin ear to the world’s opinion at all times.

We in the US—indeed all those in the Coalition of the willing —are responsible for this. If the courts will not take jurisdiction over events at Guantanamo, then we must demand that all the prisoners held there be moved to a place where ordinary civilized rules apply.

Cf. Kos, After 2190 Days, This Festering Abomination Persists

Text of ACLU Press Release:

Guantanamo Bay: Six Years and Counting… Detention facility remains a stain on American values; ACLU urges Congress to close GITMO

FOR IMMEDIATE RELEASE: January 10, 2008 Contact: Matthew Allee or Liz Rose, (202) 675-2312, media@dcaclu.org

Washington, DC - Tomorrow, January 11, 2008, marks six years since men and boys from around the world were first shipped off to the Guantanamo Bay detention facility, locked up and often abused by the American government. Since that dark day in recent American history, more than 700 people have been detained without due process and not a single trial has been completed. The American Civil Liberties Union reiterates its call to Congress to shut down the detention facility immediately and restore due process rights for those being held.

“After six years of holding these individuals without charge, Guantanamo Bay can be viewed as nothing short of an American dungeon,” said Caroline Fredrickson, director of the ACLU Washington Legislative Office. “Detainees have been locked up and our government has thrown away the keys, and with it the basic values we hold dear. America does not stand for indefinite detention without charge and the time for Guantanamo Bay to be closed is long overdue.”

Legislation has been introduced in Congress that would close the detention facility and restore due process rights to those being held at Guantanamo. Senator Tom Harkin (D-IA) introduced S. 1469, the Guantanamo Bay Detention Facility Closure Act of 2007. The bill requires the president to close the facility within 120 days of enactment - during which time detainees would be charged and sent to either the United States Disciplinary Barracks at Ft. Leavenworth, KS, or transferred to another country that will not torture or abuse them.

“Senator Harkin worked diligently to craft legislation that properly shuts down Guantanamo Bay and ends the indefinite detention of those being held. This is a major step in restoring the American image as a beacon of freedom in the world,” said Christopher Anders, legislative counsel for the ACLU. “Senators Clinton, McCain and Obama have all spoken forcefully about shutting down the detention facility during their presidential campaigns but none have yet signed on to Senator Harkin’s legislation. Talk on the campaign trail comes easy, but signing on to the legislation would be a real commitment to shutting Guantanamo Bay.”

The ACLU is encouraging demonstrations in cities across America and asking activists to wear orange in protest. For more information on the Guantanamo protests visit: http://www.aclu.org/closeguantanamo.

For more information on the Harkin bill visit: http://thomas.loc.gov/cgi-bin/query/z?c110:S.1469:

It's Starting to Hit the Fan

Like a dam weakening, the little trickle of news about misdeeds at Guantanamo and in CIA torture labs is becoming a bigger trickle.

• ABC News, CIA Spy Calls Waterboarding Necessary But Torture (but see Kevin Drum)
• AWOL Military Justice: Morris D. Davis explains why he resigned as Chief Prosecutor at Guantanamo. (It’s because they put a torture advocate above him in the chain of command). And although Congress would like him to testify, the Pentagon has refused to let him. (Will Congress use the power of the purse to force testimony? Unlikely)
• Marty Lederman explains why Congress’s intelligence oversight desperately needs an overhaul
• Independent Online Edition, CIA photos ‘show UK Guantanamo detainee was tortured’

Can we hope for a flood of revelations now?

Bonus: Emily Bazelon and Dahlia Lithwick, If the CIA hadn’t destroyed those tapes, what would be different?

Romney's Orwellian View of Freedom

I used to say that I could see Romney as the least bad of the Republican candidates. Surely no principles was better than bad ones?

I may have to reconsider. On the one matter where one has to assume he is least likely to lie to us, the place of religion in public life, former Gov. Romney has some very strange views, such as: “Freedom requires religion just as religion requires freedom.”

The clearest statement I’ve seen of the problem may be slacktivist, Mitt vs. atheists, martyrs,

Let’s deal with the latter assertion first: “religion requires freedom.” There are far too many counter-examples for this to be true. Think of China, where the government denies religious freedom to millions of Christians and Falun Gong adherents and Tibetan Buddhists. Yet despite this lack of freedom, despite this active oppression — and, in a way, in response to this oppression — these faiths are all thriving. ….

“Freedom requires religion,” Romney said. Had he said, “Freedom requires religious freedom,” then I would agree, absolutely. Try to imagine if you can a society in which people were denied this most intimate of freedoms, the freedom of conscience, yet remained in all other respects free. Such a thing is impossible. This is part of the genius of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Take away any one of those freedoms and you take away the others as well. Each of those freedoms requires the others.

But Romney did not say that freedom requires religious freedom. He said, “Freedom requires religion.” And that’s a contradictory statement — a very different, and very frightening, thing.

If freedom requires religion, then the a-religious and irreligious, the non-religious and un-religious are the enemies of freedom. Romney believes, in other words, that atheism is incompatible with freedom. Whatever it is he means by “religious liberty,” he does not believe it can safely be applied to atheists.

Don’t get me wrong: I have no problem at all with devout candidates. I respect people who want to actualize their faith — just as long as in their public life they put the First Amendment first, and don’t try any back-door establishment of religion. Thus, I respect, but disagree with, people who say abortion is murder and wish to change the law to protect what they see as unborn people. I also disagree pretty strongly with people who want use state power to enforce their versions of morality, but I often do understand where they are coming from — even though I think that many of these efforts have serious constitutional difficulties and wish they were much more sensitive to these issues.

I don’t respect people who want to create special programs whose real purpose is to funnel money to churches (although I don’t mind at all having churches compete on a level playing field for federal funds so long as they observe the rules that apply to all recipients of federal money).

But I also respect (and would rather vote for) people whose faith — be it religious or secular — leaves more scope for individual choice and autonomy on most questions of morality.

Mitt Romney’s position that atheists are or should be second-class citizens hearkens back to an old American idea, mostly abandoned in the Enlightenment period, that the irreligious were fundamentally untrustworthy because without a fear of Hell they could not be trusted to keep their oaths.

It’s deeply depressing to consider that a major GOP candidate who is 200 years behind the times may still seem modern when part of a field that seems anxious to compete on who is more for torture of more detainees, and who has the cruelest plan for deporting and deterring undocumented workers.

Oh, wait. He’s campaigning as just as much a troglodyte as most of the others. Romney thinks we should double the size of the Guantanamo prison camp. I suppose that since Romney thinks Muslims are unfit for top government jobs this shouldn’t be totally surprising.

Race to the bottom. Dragging us down with it.

Oral Argument in Boumediene v. Bush

Thanks to Oyez, you can hear (and read along with) the Boumediene v. Bush, U.S. Supreme Court Oral Argument.

It does not increase my respect for the Chief Justice. But it reflects well on both advocates, especially Seth Waxman.

Grand Jury Brooklyn: Due Process, from NYC to CIA

A Brooklyn grand jury has something to teach us about the rule of law — and about the CIA’s secret prisons and Guantanamo too.

The author of the essay that follows, John Sifton, is an attorney and private investigator, and the director of One World Research, an investigation firm specializing in human rights and public interest cases. He posted the essay that follows to a mailing list I belong to. I liked it and asked him if I could link to it, but it turned out that it hasn’t been published anywhere. John has graciously allowed me to publish it here for the first time.

Grand Jury Brooklyn: Due Process, from NYC to CIA

A few months ago, in the waning days of summer, I experienced the privilege-and the banality-of serving on a criminal grand jury in Brooklyn.

For two weeks, sworn to secrecy, my fellow jurors and I heard indictments in a catalog of felony cases: murder, assault, sexual abuse, drug and weapon possession, robbery, larceny, and sundry other violations of the New York Penal Code. We listened to testimony from victims, witnesses, police officers, and alleged perpetrators and alibi-providers, and we deliberated on whether to issue indictments. It was an edifying ordeal.

My jury of 23 was a classic Brooklyn bevy: various ethnicities, ages, races, and backgrounds. Our group included subway train drivers, sanitation workers, teachers, and various others from across the socio-economic ladder (but gravitating toward the lower end). The core of the jury was comprised of women, 18 in total: eleven black, two white, two Hispanic (one old and one young), a Russian matriarch, a two young woman of East Asian and South Asian descent. The remaining five males included three black men (including the foreman), me (“the white guy”) and a very young Israeli with dual citizenship who had just finished military service guarding border posts on the West Bank. During the two weeks of service, some interesting and unexpected cliques formed.

How I came to sit on this jury was a matter of controversy to my friends and employers.

“You couldn’t get out of it?” friends asked. Colleagues were also incredulous. I am a human rights lawyer and a private investigator and I work on a lot of cases involving detainees at Guantanamo Bay or secret CIA prisons-facilities in which grand juries are not used. Few believed that prosecutors allowed me to serve. Others were amazed that I didn’t lie outright in order to avoid service, as others apparently have. (Various lies suggested: “I’m a Quaker, etc.” “I’m a vociferous racist; I just can’t be impartial,” and “I typically have to urinate every five to ten minutes.”)

The truth is, it isn’t easy to get out of grand jury service. Grand juries aren’t like trial juries. Unlike trial juries, there is no adversarial process, no judges and no lawyers for the defendants; the only officials present are Assistant District Attorneys (ADAs), who run the process with a subtle but steely fist. The ADAs aren’t as anxious about particular jurors as attorneys might be with trial juries. Unlike with a trial jury, votes are not as momentous, and a single juror is not as vital.

After all, grand juries do not decide guilt. Instead, they vote to indict people, and the voting need not be unanimous, nor do those who vote to indict need to be convinced beyond a reasonable doubt that the accused committed a crime. All that is needed for an indictment is that a majority of the jury, 12 out of 23, believe that it is reasonably likely that the person accused of a crime actually committed it, based on the evidence presented. Twelve Angry Men, it’s not. A single Henry Fonda character, or even a vacillating Hamlet, can’t screw up an indictment.

So there was little chance of escape. In the initial excusal process, wardens excuse non-working parents with children under five, doctors, non-English speakers, certain small business owners, and people with serious health problems. Others postpone their service temporarily, as I did on three previous occasions. But there are few hopes beyond this. Once you-the hapless citizen of Brooklyn-receive your summons, you’re snagged in a net from which extrication is impossible. If you’re a citizen, have a pulse, and live in Brooklyn, you’re going to be chosen. (And if you’re not chosen-say, because the juries that day are filled-they’ll call you back a few weeks later when they do need you.)

An ADA walks in, closes the door, and says, “Good morning ladies and gentlemen of the Grand Jury.” To which some of the chipper respond, “Good morning!”

The prosecutor then proceeds through a set of formalities: “Mr. Foreperson: is there a quorum present?” (The answer is always “Yes.” A quorum is 16 people, and the prosecutor doesn’t come into the room unless a quorum is there.)

“Let the record reflect that there is. Ladies and gentlemen of the grand jury, today I will be presenting you with evidence in the case of the People of New York vs. [the name of the perpetrator]… . At the conclusion of this case I hope to present you with charges for assault and related offenses [or homicide, reckless endangerment, sexual abuse, possession of a firearm, or some other offense]. I will now call Officer O’Sullivan.”

We would then hear from police officers, some of them undercover officers who looked, convincingly, like most of the criminal defendants. Often we heard from the victims too: bodega owners who were robbed, tenants who were accosted by landlords, old ladies whose purses were snatched-a parade of men and women who, for various economic, ethnic, or emotional reasons, had been shot, stabbed, punched, pushed down stairs, or hit over the head with heavy objects.

For some cases, a defendant might also take the stand, in his or her defense. The gist of their testimony: “It didn’t happen the way you think.” My fellow jurors appeared to be particularly swayed if defendants broke down and cried while testifying-if they did, we might return a dismissal of charges. It would be hard to cry on demand, if you were lying, we figured.

The proceedings were often uncomfortable. After testimony was given, the prosecutor would excuse a witness and then ask us whether we wanted to ask the witness any particular follow-up questions. (Jurors are not allowed to question witnesses directly.) Some jurors asked for important questions, for instance: “Can you ask Ms. Jones how far she was from Mr. Taylor when he handed the bag of powdery white substance to Mr. Jenkins?” But some jurors requested exceedingly irrelevant or simply improper questions, or even started deliberating with the district attorney still present: “So, what I want to know is, how can we trust this undercover police officer? How do we know he isn’t just trying to put this guy in jail? He has all those tattoos.” Or: “He just seems untrustworthy to me.” One juror seemed to fashion herself an amateur sleuth of some kind, and was a conspiracy theorist: she simply doubted anything and everything that anyone said.

During our breaks, we ended up talking a lot. We asked the train driver about working in the subway. (“Have you ever run anyone over?”) School teachers complained about the Board of Education. The Israeli kid, a modern Orthodox, answered dozens of questions from others about Judaism and Israel (“Why do those guys [Hasidim] wear furry hats?” and “How do bald people keep the thing [pointing to the yarmulke] on their head?”)

We also talked about local politics, gossip (intriguingly intricate critiques of Foxy Brown and the various girlfriends of 50 Cent), television shows, the war in Iraq, and other issues of our day (steroid use, polygamy). We cracked jokes and stared into space, and pondered society and the meaning of “due process of law.” I also dropped catalytic comments starting discussions about how our jury process compared to what terrorism suspects face in secret CIA detention facilities, or at Guantanamo Bay (more on this below).

Often the issue before us was whether a certain alleged crime, assault for instance, could also amount to a higher charge, such as aggravated assault. The issues were difficult-was the defendant attempting to kill the defendant, just hurt him, or was he defending himself? We would try to reason with each other, we argued, we even yelled at each other. There was a lot of machismo, especially among the women: “Don’t start with me sister! You don’t want me to go there!” That sort of thing.

Eventually we would vote, and issue indictments, or not. In many cases, we returned at least some indictments, if only because many of the cases were simple and the evidence direct. (One particular ADA, a tall and handsome black man with impeccable suits, had it so easy with the women that I started teasing some of them about it. One juror said, “I just can’t concentrate when that man is in the room. He is just too … hot. Hot!”)

But sometimes, ADAs stretched too far on their charges, and we called them out on it. For instance, during the first week, one ADA tried to make us indict three separate people in a specific crime, on identical charges (I can’t go into specifics about the particular crime, but it involved a specific person committing a particular crime against a specific person). Only one person actually committed the main criminal act, though the others could legally be charged if they intended to aid the primary actor. Since we heard no evidence that the other two did intend to aid the primary actor, we refused to indict the two who aided him (though we did indict the primary actor). Interestingly, after we dismissed the charges against the two non-primary actors, our mood was bashful, but we were proud. Most of the cases typically resulted in an indictment, and the process sometimes took on a factory assembly line resemblance. But in that case, instead of being steamrolled through the process, we’d actually done something to change the course of the proceedings. We meant something.

Well, it’s simple: the whole process is mandated by the U.S. Constitution and the Constitution of the State of New York. As the 5th Amendment states: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury… . nor [shall any person] be deprived of life, liberty, or property, without due process of law.” The same is applicable in New York under Article 1, Sec. 6 of the Constitution of New York. These provisions go back hundreds of years, even to New Amsterdam. They serve as basic guarantees at the center of our criminal justice system: namely, that the jailing of suspected criminals must be justified before an independent body representing the polity-a set of people representing society at large-and that the justification for detention must be part of an established process of law.

Of course, as we on the grand jury came to realize, it’s a busy system: Hearing cases, we came to appreciate the fact that all over Brooklyn, and all over the United States, literally every hour of every day, people are committing crimes.

Some of the crimes that are occurring in America are mundane: the drug dealer selling narcotics, the drunk driving a car. And some crimes are horrifying: a man selling pictures of his stepdaughter over the internet, or a group of white supremacists beating up a Sikh gas station attendant. And other crimes are very complex: A grafter setting up a string of bogus companies in various countries to launder money for criminals engaged in human trafficking, or even worse: a transnational radical armed group plotting and raising money to carry out violent attacks on civilian and military targets in the United States and abroad. As jurors, we came to see a sample of this sheer scope of criminality in the United States.

We also came to appreciate the scope of the system created to manage it. Americans rarely get to see, up close, the process in which our local, state, and federal governments take suspected perpetrators into custody and deprive them of their liberty, temporarily at first, while they are charged with a crime and processed, and then permanently if they are found by trial to have actually committed crimes. Of course, it’s a flawed process-a deeply flawed process that accentuates the inequalities of our society. Nevertheless, serving on a jury you are made to remember-by the ritual of the courtroom-that the process is still that: a process. And the contours of this process are defined by law and established practice (hence, the concept of due process). Moreover, this process is ultimately subject to checks and balances. The police, as prime detainers and deniers of liberty, are subject to review by the judiciary and the polity at large.

Yet, as one of my fellow jurors pointed out during a break: “There ain’t nothing like this for the guys at Guantanamo Bay.” Indeed, nor for terrorism suspects in secret CIA jails.

So, some of us came to ask ourselves-why not?

During breaks, I framed the question to some others: Why is the Bush administration so hostile to putting high value terrorism suspects into a regular criminal law system? Why couldn’t a jury just like us-our jury-handle it? If we, a predominately minority and female-dominated jury in Brooklyn, one of the most liberal places in the United States, voted to indict almost everyone presented to us, why would the Bush administration be so afraid of putting terrorism suspects in civilian court?

All of the administration’s arguments about Guantanamo and CIA prisons-about practicality, guarding classified intelligence gathering secrets, and security-all of these have analogies with the criminal law cases we heard on our grand jury.

As we came to understand, police worry about practicalities too, the secrecy around their undercover officers and informants, and the security of witnesses and juries. “The stakes” can’t be the issue either: ordinary criminals in the United States kill and injure far more people than terrorists.

I don’t mean to suggest we were a perfect jury. We were not. Some of the jurors among us struck me as hopelessly illogical. But at the end of the day, we made good decisions. It was fitting and proper that the State of New York and local government of Brooklyn trusted us to listen to secret information from police, and then deliberate and make important decisions about how to deal with criminal suspects.

Why the federal government can’t trust citizens to do the same with high level terrorism suspects-this, understandably, was a subject we never settled.

© 2007 John Sifton

Banned on Fox

Here’s a commercial that the Fox News network refused to air.

Click here if you cannot see the clip.

Given it’s only a so-so commercial, it’s hard to see what they were so scared of. Could it be the figure at the end? Or is it the source, the Center for Constitutional Rights?

In Which the System Chews Up and Spits Out an Honest Man

One Fewer Good Man.

Why do we have to lose straight-arrow Lt. Col. Colby Vokey, but keep the odious Col. Boylan?

Local PD Representing Two Guantanamo Detainees

Nice article in the Daily Business Review on assistant federal public defender Paul Rashkind, who is representing two persons being held at Guantanamo Bay.

Collective Responsibiltiy

Grad Student Madness: Can There be Collective Shame? takes issue, inter alia, with a post of mine from 2003, Guantanamo: Our Collective Shame.

The author rejects the very idea of collective shame, saying shame is individual,

It seems to me that the nature of shame is that it is not just individual; it’s individualizing. Shame removes us from our fellow men and makes us painfully aware of our isolation in the world. It is, in this sense, experienced in much the same way as the ancients experienced fate. It is ours to carry, if we choose to accept it. It’s also what makes us moral beings,

The author then goes on to reject collective guilt (also personal) and to question collective responsibility:

A group of people can accept collective responsibility for a crime or transgression, even if guilt can only be accepted on an individual basis. But what does collective responsibility mean when the whole nation accepts it? Nearly as little as collective pride, one would guess. For instance- if all of Germany accepts responsibility for the Holocaust, what distinguishes Eichmann from a butcher in Hamburg who really was unaware? And what distinguishes any of us in this era from a torturing guard at Abe Ghraib? Or from al-Quaida, given that we have all failed to prevent al-Quaida’s actions? Is it evident how meaningless this can become?

…

I assume that these collective shaming exercises are intended to inspire us to action, and yet shame is a horrible motivator.

…

And so, I think that something like collective shame cannot exist, nor collective guilt; but perhaps something like collective responsibility is possible. Yet, given that collective responsibility tends to flatten out individual responsibility to a benign gray area, I think the most honest way to respond to transgressions is to assign individual responsibilities, and in turn to accept individual responsibility.

I plead guilty to the charge that a purpose of talking about collective shaming is to “to inspire us to action.” Most of the rest I disagree with.

I think the author misses three aspects of the collective guilt/shame/responsibility idea. (They are closely linked: responsibility leads to guilt and shame.)

#1 When the bad act is by your agent, you share in the responsibility for it. In a democracy, your government is your agent. It acts in your name. You therefore have presumptive responsibility for what it does.

#2 One way to shift that burden is to oppose what is done in your name. Indeed there may be a (moral) duty to do so in extreme cases. To fail to oppose serious known (or knowable) evil is — and this is the key step in the argument — to shoulder a significant and meaningful degree of personal responsibility for it. whether one wants it or not.

#3 Failure to shoulder the burden to oppose should lead to guilt and shame. Whether those are “collective” or “individually applying to everyone” seems to me to be, in the grand scheme of things, a quibble. If some people prefer the second formulation, I’m not about to argue.

#4 Nothing about the above requires one to close one’s eyes to the reality that there are shades of gray, and also black and white. Direct actors are more responsible than passive ones. Eichmann was worse than a Good German who didn’t want to know. The argument neither excuses the Good German, nor suggests, much less requires, that there is an equivalence between the ordinary and the extraordinary. (I leave that for (mis?)readers of Hannah Arendt.)

That is why those among us who know or should know about Guantanamo and about the government’s other torture stations must oppose it, or in failing to do so take on a degree of responsibility for it. For each person that is an individual matter; the collective aspect is that the choice faces each of us, as individuals, not that it faces all of us as components of a mass.

US Government Continues to Blacken Our Names

I’m running out of energy to keep on posting about the judicial horrors perpetrated by this administration. Fortunately, there are others made of sterner stuff.

Have a look at Crooks and Liars, Justice, Guantanamo Style. Sickening stuff.

Habeas Restoration Bill Hangs By a Vote

According to the reliable folks at Firedoglake, the habeas restoration bill is within a vote or two of passage.

If you are represented by any of the following fence-sitters,

Sen. Joe Lieberman (I-CT)
Sen. Ben Nelson (D-NE)
Sen. Chuck Hagel (R-NE)
Sen. Richard Lugar (R-IN)
Sen. Larry Craig (R-ID)
Sen. Susan Collins (R-ME)
Sen. Olympia Snowe (R-ME)
Sen. Norm Coleman (R-MN)
Sen. George Voinavich (R-OH)
Sen. John Sununu (R-NH)
Sen. Mary Landrieu (D-LA)
Sen. Gordon Smith (R-OR)
Sen. Lamar Alexander (R-TN)

please give them a call and encourage them to remove this blot on the rule of law. (Phone numbers and multiple arguments are here.)

Legal Earthquake: US Supreme Court to Rehear Boumediene and Al Odah

This is a big deal.

The US Supreme Court has reversed its previous denial of rehearing in Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196), two of the leading-edge Guantanamo detainee cases. Some details at SCOTUSblog.

The move required five votes, strongly suggesting that Justice Kennedy may have moved off the fence.

Previously, both he and Justice Stevens had voted against hearing the cases at all, meaning that only three Justices had voted in favor, an insufficient number for the cases to be heard.

But now there are five potential votes to save habeas corpus and uphold the rule of law against executive attempts to detain indefinitely, make up inadequate kangaroo-court-like procedures (and even torture, although that’s not directly at issue in these cases).

Al Odah v. United States, filed jointly by CCR, co-counsel Shearman & Sterling LLP, and a number of other law firms in 2004, consists of eleven habeas petitions, including many of the first ones filed after the Supreme Court’s Rasul decision.

The Boumediene appeal, filed by Wilmer Cutler Pickering Hale and Dorr LLP in 2004 and heard with a case brought by Clifford Chance LLP, is on behalf of six Bosnian-Algerian humanitarian workers seized by the U.S. military in Sarajevo after Bosnian courts determined that a three-month investigation had unearthed no evidence to support their continued detention and ordered local authorities to release them.

Case Timeline

Both the Al Odah and Boumediene habeas corpus petitions were filed in July 2004, shortly after the historic Rasul v. Bush Supreme Court decision that affirmed the detainees’ right to challenge their detention.

In January 2005, District Judge Joyce Hens Green held in Al Odah that detainees possess “the fundamental right to due process of law under the Fifth Amendment” and that certain detainees are protected by the Geneva Conventions. U.S. District Judge Richard Leon reached the opposite conclusion in Boumediene, ruling that the detainees possess no substantive rights to vindicate through habeas corpus. The two cases were consolidated and appealed to the D.C. Circuit Court of Appeals.

On February 20, 2007, two years after the cases were first appealed, a divided panel of three judges of the D.C. Circuit Court of Appeals ruled 2-1 in the consolidated case that the Guantánamo detainees have no constitutional right to habeas corpus review of their detentions in federal court. Because the court also found the MCA eliminated any statutory right of access to the courts under habeas corpus, it dismissed their cases.

On March 5, 2007, CCR attorneys, along with co-counsel, petitioned the U.S. Supreme Court to review the Court of Appeals decision that dismissed Al Odah and Boumediene and to hear the cases on an expedited schedule. Attorneys submitted an accelerated briefing schedule to ensure that the cases will be heard before the Supreme Court goes on summer recess; otherwise, the question of whether Guantanamo detainees still have the right to challenge their detention through habeas corpus might go unanswered until 2008.

On April 2, 2007, the Supreme Court announced that it would not be hearing the cases of the Guantánamo detainees for the time being. The Court denied the Center for Constitutional Rights (CCR) and co-counsel’s motion to hear the case with three justices dissenting and two issuing a statement that the detainees should exhaust the process set up by the Detainee Treatment Act (DTA).

Today’s reversal overturns that April decision. What has changed since then? The main thing is that it has become increasingly obvious that the procedures being used in the Guantanamo trials are a farce. That comes mostly from the press — what we’ve seen from the DC Circuit is rather a refusal to address that issue. Which may be why the Supreme Court is finally reacting.

Or is the court just getting a little ahead of Mr. Dooley’s predictions?

We have posted all of the filings in these cases.

The original petition in Boumediene, filed March 5, is here, and Al Odah is here. Both were denied on April 2, with Justice Breyer authoring a dissent from denial here, and Justice Stevens and Kennedy writing here respecting the denial of cert.

The Boumediene petition for rehearing, filed April 27 and granted today, is here, and Al Odah is here. The Solicitor General’s reply, filed June 19, is here.

For Those Who Came In Late

SCOTUS Blog has a very fine summary of the state of play of US law regarding detainees at Guantanamo and other offshore locations. Primer on detainees’ status now — Part I and Primer on detainees’ status now — Part II.

Recommended.

Boston Public Does Gitmo

Boston Public does — I mean does — Gitmo:

Wow.

What's Doing (Reptiles Dept.)

I just want to thank all the people who have kept the comments lively at The Buck Doesn’t Even Stop By For Visits while I’ve been somewhat distracted by work.

If I know what’s good for me, blogging will be light for the next few days — I have to write an exam and do major surgery to a paper.

The world certainly is doing its best, however, to be very distracting.

For one thing, there’s a good-sized scaly toothed reptile back in the campus lake. I saw about seven eights of it, but not the snout which it had lodged under something at the bank of the lake, so I don’t know if it’s a gator or a croc, but I’d guess gator. The whatever-it-was had beached the front of its face, nose first, only 100 feet or so from the Rathskeller where students were happily boozing it up on a Friday afternoon, but there was a campus cop keeping the passing students from getting too close. He didn’t seem to be enjoying the job, and gave a rather grim smile when I observed that the gator had a police escort.

Previous posts on our toothy friends include Crocodile Reminder, Crocodile Coincidence, What? A Croc?, Croc II !, Cold Front Flushes Out UM Croc, Fair Warning (Alligator Dept.), Who Gets Custody of the Alligator ? and of course Exam Question: Is an Alligator a Deadly Weapon?. It’s not an obsession, really, just a fact of life.

Speaking of reptiles, the DoJ has done another Friday evening document dump.

Speaking of sinking your teeth into things, or maybe it’s man-bites-dog, don’t miss Army Officer Accuses Generals of ‘Intellectual and Moral Failures’ an amazing article about a Lt. Col. attacking his superiors (generically, not by name) in a prestigious army journal for incompetence and dishonesty in their prosecution of the Iraq war and for misleading Congress about it.

“After going into Iraq with too few troops and no coherent plan for postwar stabilization, America’s general officer corps did not accurately portray the intensity of the insurgency to the American public,” he writes. “For reasons that are not yet clear, America’s general officer corps underestimated the strength of the enemy, overestimated the capabilities of Iraq’s government and security forces and failed to provide Congress with an accurate assessment of security conditions in Iraq.”

Yingling said he decided to write the article after attending Purple Heart and deployment ceremonies for Army soldiers. “I find it hard to look them in the eye,” he said in an interview. “Our generals are not worthy of their soldiers.”

Next to last, but not least, the Bush administration war on the rule of law continues apace with its latest attempt to make it impossible for lawyers to provide meaningful or effective representation for Guantanamo detainees. I would write about this but words fail me to describe the petty viciousness of this idea and the manifest hostility to the very due process that I would have thought was one of the great achievements of our civilization. The NYT has an editorial which says part of what needs saying; some more of it is found in this Conversation with Gitmo Lawyer on Proposed DOJ Rules. Don’t look to the Supreme Court to do anything fast — in tangentially related cases, it’s not rushing the process, which is Shakespearian in its delay:

“For who would bear the whips and scorns of time, The oppressor’s wrong, the proud man’s contumely,
The pangs of despised love, the law’s delay,
The insolence of office and the spurns
That patient merit of the unworthy takes,”

Meanwhile, only the willful blindness of one or two men (Bush, Chaney, take your pick), ensures that the US Army will continue to bleed itself dry in Iraq, to no visible benefit to anyone outside the White House. I understand that our departure could lead to horrors — and think we have a duty to mitigate them, especially be admitting a very large number of refugees here in order to protect all the people who have helped us. If there were a plausible scenario by which staying on would allow us to enact the ‘Pottery Barn rule’ (you broke it, you pay for it), I could support that. But the occupation is as big a failure as the initial military campaign was a success. No one arguing for staying on has a winning strategy that they can articulate other than “retreat is not an option”.

I tremble for my country when I reflect that God is just, that His justice cannot sleep forever.

Rumsfeld's House of Lies and Inhumanity

British lawyer Clive Stafford Smith has 36 clients in Guantánamo. He’s written a book called “Bad Men” about what a twisted place it is, and the Guardian is running excerpts,

In Guantánamo, the military began with smaller lies and worked upwards. I was visiting Camp Echo one day and they had messed up the visitation schedule. The client I was meant to see was not there, although I had sent the schedule for my visits several weeks before. I thought I might as well go ahead and see Shaker Aamer [British resident captured in Afghanistan], whom I was not meant to meet until later in the week. So I asked the SOG (the sergeant of the guard, in charge of the camp) whether Shaker was in his normal cell. “No, he’s not here,” the SOG replied. I settled down for another wasted hour, waiting for the military to bring over someone I could see. It was hot even under the umbrella at the “picnic table” - the area behind one of the cells in Camp Echo where they made lawyers wait. I watched a lizard crawling up the green mesh on the wire fence. I thought about the spider in Robert the Bruce’s cave, continually battling to spin its web and teaching patience to the early Scottish nationalists.

The next day I saw Shaker. “Were you here yesterday?” I asked. “Yeah, of course. I’ve been here for weeks,” he replied. …

The dissembling disease got worse as time passed. First there was the effort to suppress the truth, with censorship or silence rather than any overt falsehood. Then there was the lie by semantics, where the US military redefined the language to provide plausible deniability. Finally, there was the bare-faced lie. This kind of culture does not germinate in a vacuum. Rumsfeld is responsible for a reconstitution of the English language. …

In a December 2004 press conference, the US navy secretary Gordon England tried to defend conditions in Guantánamo by producing the novel argument that the camp was rehabilitative: “People have learned to read and have learned to write, and so it’s not just being incarcerated. We do try to get people prepared for a better life.” Prisoners had some difficulty exercising their new-found abilities. Indeed, contrary to England’s statement, prisoners in Guantánamo were certainly not considered “people” and the guards were not even allowed to call them “prisoners”. …

Meanwhile the authorities exercised rigid control over any information that the prisoners received. Each time I went to visit, I would take a suitcase full of reading materials. I maintained a log reflecting the fate of each publication. Magazines awarded the stamp DENIED included National Geographic, Scientific American and Runner’s World. On one occasion it seemed justified, since that month’s National Geographic had a story about building an atomic bomb, but the editions about whales and African tribes hardly seemed a threat to national security. One soldier explained the censorship of Scientific American to me: the prisoner might learn about some hi-tech weapons system. Banning Runner’s World was less obvious, given the naval base was surrounded on one side by a Cuban minefield and on the other three by ocean.

…I dropped off an anthology of first world war poetry for Omar Deghayes that included Wilfred Owen’s poem Futility, about the ghastly violence of war. It was returned DENIED.

Omar was born in 1969 and was a British refugee from Libya. His father was tortured and killed by Muammar Gadafy in 1980, and as a teenager Omar moved with his family to Brighton and studied law. He had not completed his law exams, so I brought his books so he could study, ready for his release. Law books, though, were not permitted, least of all a subversive tome about the legal rights of prisoners.

…

The only Australian left in Guantánamo, David Hicks, was facing a military con-mission, like Binyam, and his lawyer was banned from giving him Scott Turow’s legal thriller Presumed Innocent. The basis for censoring The New Dinkum Aussie Dictionary was less clear. Perhaps the strangest decision involved four books returned with the notation: “These Items were not Cleared for Delivery to the Detainee(s).” They were Puss in Boots, Cinderella, Jack and the Beanstalk, and Beauty and the Beast - all in Arabic translation. As one FBI agent admonished me: “You know that Arabic script is full of squiggles, and it can easily hide messages to the prisoners.” Could it be, I wondered, that Cinderella was secretly an enemy combatant? Eventually the military barred us from bringing books for our clients altogether.

And then there was the secrecy: lawyers were neither allowed to repeat anything the prisoners said to them, nor even to keep their own notes, which were all shipped to DC to be scrutinized by a declassification group before they’d be let out into the open.

All this was to control the flow of bad news out of Guantánamo. From the beginning Joe Margulies, the other civilian lawyer working for Binyam Mohamed, encapsulated the proper response to this: if we could open up the prison to public inspection, the government would close it down.

And there was a lot to hide. For example,

The way the military had pretended to torture his wife in the next room, even information about American soldiers murdering two prisoners in front of Moazzam, was considered a “method of interrogation” that could not be revealed.

Amnesty International’s report, USA: Cruel and Inhuman — Conditions of Isolation for Detainees in Guantanamo Bay is grim. I wish every member of Congress could be persuaded to read it.

Despite being provided with what the US government has called “high quality” medical care, adequate food, sanitation and access to religious items, most detainees have languished in harsh conditions throughout their detention, confined to mesh cages or enclosed maximum security cells. Moreover, in December 2006, a new facility opened on the base. This facility, known as Camp 6, has created even harsher and apparently more permanent conditions of extreme isolation and sensory deprivation in which detainees are confined to almost completely sealed, individual cells, with minimal contact with any other human being.

…

At the time of writing, about 300 of the Guantánamo detainees — nearly 80 per cent of the current detainee population — were believed to be held in isolation in Camps 5, 6 or Camp Echo. According to the Pentagon, 165 detainees had been transferred to Camp 6 from other facilities on the base by mid-January 2007. Around 100 detainees are held in Camp 5, and some 20 more are believed to be held in isolation in Camp Echo, a facility set apart from others on the base, which was originally used to hold detainees selected for trial by military commissions. Fourteen “high value” detainees transferred from years of secret detention to Guantánamo Bay in September 2006 are also held in isolation on the base, although their exact location is unknown.

The isolation, and other psychologically damaging aspects of the treatment are literally driving the prisoners crazy. It is no surprise that there are suicides and growing hunger strikes.

I do not believe that this sort of treatment can be justified under any moral standard, however elastic.

Detainee 940 Still Waiting for Justice

This, on the other hand, is not funny at all: Guantanamo Waiting for Justice, the latest from Project Hammad.

(thank you to MK).

ACLU on Surreal Hicks Proceeding

In the don’t-miss category is this blog entry at the ACLU Blog by Ben Wizner posting from the Gitmo hearings of Australian David Hicks, A Tailor-Made Guilty Plea.

Here are some of the best parts:

First, following a somewhat arcane discussion, the judge ruled preliminarily (while claiming not to) that one of Hicks’s lawyers, Rebecca Snyder, could not represent Hicks, because she had been appointed by the chief military defense counsel but was not herself on active duty. This was wrong – and the judge allowed that he might revisit the issue after briefing — but the result was the first empty chair at Hicks’s table.

Next, and far more troubling, the judge stated that Hicks’s civilian defense counsel, well-known criminal defense attorney Joshua Dratel, had not submitted a letter indicating his agreement to comply with the rules and regulations of the Commissions, and therefore was not qualified to serve as counsel. Under Commission rules, a civilian lawyer must sign an agreement issued by the Secretary of Defense indicating that the lawyer agrees to abide by the Commission’s regulations. The problem for the judge was that the Secretary of Defense had not yet created that agreement, and therefore Dratel could not sign it.

Instead, the judge had created his own version of the agreement – thereby, in Dratel’s words, “usurping the authority of the Secretary of Defense.” Dratel would have signed even that version – so long as the agreement made clear that it applied only to regulations that already existed, and not to those (and there are many) that have not yet been issued. “I cannot sign a document that provides a blank check on my ethical obligations as a lawyer,” Dratel explained. In simple terms, Dratel was unwilling to pledge compliance with rules that he had not yet seen.

The judge was unpersuaded. “I find no merit in the claim that this is beyond my authority,” he said. “That’s sometimes what courts do, they find a way to move forward.” Because Dratel refused to sign the agreement as written by the judge, he could not serve as counsel. There was a second empty chair.

“I’m shocked,” said Hicks, “because I’ve just lost another lawyer. Now I’m left with poor Mr. Mori.” (Major Dan Mori is Hicks’s very able military defense counsel.)

This was followed by one of those almost-surreal moments that the Military Commissions routinely produce. The judge had just issued rulings that effectively deprived Hicks of two of his three lawyers. So he decided the time was right to address an issue of fundamental importance: Hicks’s clothes. Hicks had arrived in court wearing beige prison attire. The judge said that he thought that a suit and tie, or business casual – which he helpfully defined – would be more appropriate. This practice was “designed to protect the presumption of innocence,” the judge explained, because Commission members who observed the accused in prison clothing might be subconsciously prejudiced against him.

D.C. Circuit Upholds Jurisdiction-Stripping of Guantanamo Habeas Claims

This is the “Al Odah” case, although it may end up captioned differently (Boumediene v. Bush, 05-5062 (D.C. Cir., Feb. 20, 2007)). Text of the 2-1 decision by Judge Randolph for himself and Judge Sentelle. There’s a long and persuasive dissent by Judge Rodgers, noting that the Supreme Court, at least in dicta, appears to hold a different view about key elements of the case.

If Sandra Day O’Connor were still on the Supreme Court, I’d predict reversal with some confidence. Now, I’m not as sure, but I still think there is a good chance that there are at least five votes left to overturn this. I suspect that there is, however, no real chance it would be overturned en banc in the D.C. Circuit. That court has become astoundingly right-wing as of late.

Truth, Justice, and the American Way

Pentagon sets rules for detainee trials - Yahoo! News

The Pentagon has drafted a manual for upcoming detainee trials that would allow suspected terrorists to be convicted on hearsay evidence and coerced testimony and imprisoned or put to death.

Well, that explains why they drafted it in secret and chose not to put up a rough draft for public comment as is commonly the case (although not legally required) for rules of this type.

Full text of the manual is now online, but I have not had a chance to read it yet.

In Our Names

Joseph Margulies has a hard-hitting article, U.S. can't tell a combatant from a cook in the Chicago Tribune.

We've known that there were a lot of innocent people at Guantanamo, but this many?

The Pentagon's data show that only 8 percent of the prisoners at the base are even alleged to have been Al Qaeda fighters--assuming the allegations against them are true.

Even slave laborers are classified as "enemy combatants":

Officers told [Abdul] Aliza that having been kidnapped by the Taliban and forced to serve as a cook or a waiter was irrelevant to whether Aliza was an enemy combatant. Aliza found this impossible to comprehend.

"You mentioned that being forced and not being forced are the same," Aliza told his interrogator. "How can a person that is forced or not forced to do something be equal? . . . [I]f I was taken by force by the Taliban, how can I be a member? If I'm not willing to do something, but forced by a soldier to do it, how can the two have the same meaning. . . . If you don't agree with them they will beat and torture you and then throw you in prison."

No one answered Aliza's questions, and authorities decided he was an enemy combatant. As of late 2006, Aliza was still at the base. He may be there still; the Pentagon refuses to say.

So, correct me if I'm wrong, but under this logic, Jewish inmates in Nazi concentration camps could today be considered "enemy combatants"?

Kafka. It's pure Kafka:

In summer 2005, the Bush administration announced that 70 percent of the base's prisoners had been slated for release because they were not a threat. It never happened.

Though some were released, most of the prisoners continue to languish at Guantanamo and, the administration says, may be held there for the rest of their lives, with no evidence presented against them and no opportunity to plead their case in court.

Much of the problem has to do with the words and definitions the administration uses.

Being an enemy combatant does not mean a prisoner did anything wrong, the administration said in documents written by the Department of Defense in 2004.

My tax dollar at work. And yours, if you're a US taxpayer too.

Surely there must be something we can do about this besides carp and bear witness?

White House Tries Economic Pressure on Lawyers Representing Guantanamo Detainees

I'm sorry, but this is just disgusting. Now that there's a real chance that the might lose in the courts, the White House is trying to put the economic screws on lawyers representing Guantanamo detainees.

This radio interview with Cully Stimson, a Deputy Assistant Secretary of Defense, heralds the start of an organized campaign by the White House to encourage major law firm clients to pressure those firms to drop their pro-bono representation of Guantanamo detainees.

The Washington Post had a forceful editorial about this today, which says almost everything that needs saying:

MOST AMERICANS understand that legal representation for the accused is one of the core principles of the American way. Not, it seems, Cully Stimson, deputy assistant secretary of defense for detainee affairs. In a repellent interview yesterday with Federal News Radio, Mr. Stimson brought up, unprompted, the number of major U.S. law firms that have helped represent detainees at Guantanamo Bay.

"Actually you know I think the news story that you're really going to start seeing in the next couple of weeks is this: As a result of a FOIA [Freedom of Information Act] request through a major news organization, somebody asked, 'Who are the lawyers around this country representing detainees down there,' and you know what, it's shocking," he said.

Mr. Stimson proceeded to reel off the names of these firms, adding, "I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out."

Asked who was paying the firms, Mr. Stimson hinted of dark doings. "It's not clear, is it?" he said. "Some will maintain that they are doing it out of the goodness of their heart, that they're doing it pro bono, and I suspect they are; others are receiving monies from who knows where, and I'd be curious to have them explain that."

It might be only laughable that Mr. Stimson, during the interview, called Guantanamo "certainly, probably, the most transparent and open location in the world."

But it's offensive -- shocking, to use his word -- that Mr. Stimson, a lawyer, would argue that law firms are doing anything other than upholding the highest ethical traditions of the bar by taking on the most unpopular of defendants. It's shocking that he would seemingly encourage the firms' corporate clients to pressure them to drop this work. And it's shocking -- though perhaps not surprising -- that this is the person the administration has chosen to oversee detainee policy at Guantanamo.

It's true that the list of law firms donating time to representing the victims of torture, humiliation (and a total lack of due process) at Guantanamo reads a bit like a who's who of the elite of the corporate bar. And they deserve credit for it.

I'd just add one thing: the first firm to cave on this issue is going to find it awfully hard to recruit elite law students, as they will have demonstrated a serious lack of moral fiber. If you won't stand up for your most desperate clients, what kind of firm are you?

January 11 is the International Day to Shut Down Guantanamo

Today is the International Day to Shut Down Guantanamo.

And there are major reasons to shut that place down now. See, for example, Human Rights Watch, Guantanamo Five Years Later: It's Time for Justice.

There will demonstrations all over the world -- including here in Miami. A friend writes:

The Miami Chapter of Amnesty International will be participating the in the demonstration on Thursday, January 11, 2007 asking for the closure of Guantanamo. It will be at the intersection of NW 87 Ave and 36 St, one block from Southcom from 7:00 a.m. to 11:00 a.m.

The flyer for this event has this additional info:

Park at the Miami West Park, 3000 N.W. 87th Ave. 3 blocks south of the event. This park is also a peaceful rest area, should you need to sit down for a spell.

The Guantanamo prisoners have never been charged, tried, or convicted of any crime. We are a nation of laws and our humanity is threatened when we accept or allow unjust imprisonment, torture and even deaths in the name of America.
Many of us will wear orange jumpsuits and hoods. We will each take on the name of one prisoner and stand for their rights.

Miami for Peace is sponsoring this action with Global Exchange, CODEPINK Women for Peace, United for Peace and Justice, the Bill of Rights Defense Committee, Veterans for Peace South Florida, Miami Chapter of Amnesty International and many others.

As DKos asks, Will This Outrageous Outlawry Never Be Stamped Out?

Defund GITMO - Justice in the USA

Here's my modest proposal for the Democratic Congress: defund Gitmo. Bring all the prisoners into the US, where they will be guaranteed due process or POW status depending on whether they are civilians or foreign fighters.

Too simple? Why?

I wish I could make a similar proposal for the legal cesspools in Iraq, but there are two reasons why I can't. First, the Geneva conventions impose limits on the occupying power's ability to remove civilians from the jurisdiction. Second, the numbers involved are simply too large.

But we could at least require that any US citizen arrested in Iraq be released within 48 hours or repatriated for trial.

Gitmo

It's good to have a Democratic Congress:

The US Department of Defense (DOD) has indicated that it will seek congressional approval for its planned $100 million Guantanamo Bay legal facility rather than expedite construction by declaring it an emergency expense.

[Background info at Pentagon Rushes to Build Mega-Complex at Gitmo -- Before Dems Take Congress?]

Pentagon Rushes to Build Mega-Complex at Gitmo -- Before Dems Take Congress?

Today's Miami Herald has a great story on the Pentagon's unseemly rush to build "in three months, a mini-city on an abandoned airfield to stage the trials -- two new courtrooms with space for two more, dining, housing and work space for up to 1,200 military and civilians working at the trials, and media, conference and classified information centers."

The Pentagon is invoking emergency authority to fast-track funding of a comprehensive war-crimes court compound at Guantánamo Bay, Cuba, according to a letter to Congress obtained by The Miami Herald.

Department of Defense spokesmen would not say when -- if ever -- the Pentagon had last invoked similar authority.

Nor would they specify which military construction already approved by Congress would be frozen to fund the courtroom project, which could cost as much as $125 million, according to U.S. government documents.

Since Congress hasn't appropriated funds for this, the emergency money for the secret no-bid contract is coming out of something else -- the war effort, if you will.

Hard to escape the feeling that the rush here is that once the Democrats are in Congress they won't allow this sort of travesty, and Rumsfeld wants to, as Menachem Begin used to put it, "make facts" on the ground.

Full Text of Dodd Bill to Amend MCA

Someone was kind enough to provide the text of the bill Sen. Dodd hopes to introduce today to amend the Military Commissions Act (MCA), the "Effective Terrorists Prosecution Act".

Sen. Dodd Wants to Roll Back Aspects of the Torture Bill

Washington- Senator Chris Dodd (D-CT), an outspoken opponent of the Military Commission Act of 2006, today introduced legislation which would amend existing law in order to have an effective process for bringing terrorists to justice. This is currently not the case under the Military Commission Act, which will be the subject of endless legal challenges.  As important, the bill would also seek to ensure that U.S. servicemen and women are afforded the maximum protection of a strong international legal framework guaranteed by respect for such provisions as the Geneva Conventions and other international standards, and to restore America’s moral authority as the leader in the world in advancing the rule of law. 

“I take a backseat to no one when it comes to protecting this country from terrorists,” Sen. Dodd said. “But there is a right way to do this and a wrong way to do this. It’s clear the people who perpetrated these horrendous crimes against our country and our people have no moral compass and deserve to be prosecuted to the full extent of the law. But in taking away their legal rights, the rights first codified in our country’s Constitution, we’re taking away our own moral compass, as well.”

The Effective Terrorists Prosecution Act:

• Restores Habeas Corpus protections to detainees
  
• Narrows the definition of unlawful enemy combatant to individuals who directly participate in hostilities against the United States who are not lawful combatants
  
• Bars information gained through coercion from being introduced as evidence in trials
  
• Empowers military judges to exclude hearsay evidence they deem to be unreliable
  
• Authorizes the US Court of Appeals for the Armed Forces to review decisions by the Military commissions
  
• Limits the authority of the President to interpret the meaning and application of the Geneva Conventions and makes that authority subject to congressional and judicial oversight
  
• Provides for expedited judicial review of the Military Commissions Act of 2006 to determine the constitutionally of its provisions
  

“We in Congress have our own obligation, to work in a bipartisan way to repair the damage that has been done, to protect our international reputation, to preserve our domestic traditions, and to provide a successful mechanism to improve and enhance the tools required by the global war on terror,” Dodd said.

'Enemy Combatant' Goatherd Released

David Markus has the scoop in Southern District of Florida Blog: Federal Defenders secure release of "enemy combatant" shepherd, the story about how two local Florida public defenders (Paul M. Rashkind and Tim Cone) sprang a goatherd from Guantanamo.

The Defenders began representing Taj about a year ago and, after security clearances were approved, Paul Rashkind began to uncover evidence and develop a strategy to obtain his release. Just 14 days ago, Rashkind and Cone filed a set of classified challenges to Taj's continued detention, explaining why he should be released now. Last night, on the eve of the military hearing, Taj was on a plane back to Afghanistan. He was released to his family earlier today. Rashkind commented, "America was not a safer place while he was detained, but we can certainly feel better about ourselves now that he is home."

The moral of the story: access to counsel is a critical right.

Big Win for Rule of Law

I am far away on a very very slow link, but from what I can tell the announcement that the USA will henceforth again adhere to a key part of its obligations under the Geneva convention looks like a big victory for the rule of law.

And, yes, there can be devils in the details. (But I do agree that there is nothing at all inherently wrong with *properly constituted* courts martial to hear the status claims of POWs and other detainees. Quite the contrary. And a big step up from what they've been getting.)

American Heros

I've said it before, I'll say it again, the military lawyers representing detainees are true heroes. And it hasn't been without personal cost -- see Whiskey Bar: Men of Honor on how Lt. Cmdr. Charles Swift, victorious in the Hamdan case, may be forced out of the Navy.

Hamdan Highlights

In the extended I post the syllabus (summary) of the case, pending publication of the full text somewhere.

Three key points (I think) on a quick reading:

• 5-3 for most of it, with Kennedy writing separately from the majority, avoiding decision on some of the finer points of what the Geneva Convention requires

• Five votes for the proposition — rejected by a majority in the DC Circuit, with prescient concurrence on this point by Judge Williams — that common Article 3 of the Geneva Convention applies to the people held in Guantanamo Bay, whatever label the administration tries to stick on them (e.g. “enemy combatant”)

• The majority makes it clear that the Authorization for Use of Military Force is not a blank check for the President.

Justice Stevens delivered the opinion of the Court, except as to Parts V and VI-D-iv, concluding:
1. The Government’s motion to dismiss, based on the Detainee Treatment Act of 2005 (DTA), is denied. DTA §1005(e)(1) provides that “no court … shall have jurisdiction to hear or consider … an application for … habeas corpus filed by … an alien detained … at Guantanamo Bay.” Section 1005(h)(2) provides that §§1005(e)(2) and (3)-which give the D. C. Circuit “exclusive” jurisdiction to review the final decisions of, respectively, combatant status review tribunals and military commissions-“shall apply with respect to any claim whose review is … pending on” the DTA’s effective date, as was Hamdan’s case. The Government’s argument that §§1005(e)(1) and (h) repeal this Court’s jurisdiction to review the decision below is rebutted by ordinary principles of statutory construction. A negative inference may be drawn from Congress’ failure to include §1005(e)(1) within the scope of §10 05(h)( 2). Cf., e.g., Lindh v. Murphy, 521 U. S. 320, 330. “If … Congress was reasonably concerned to ensure that [§§1005(e)(2) and (3)] be applied to pending cases, it should have been just as concerned about [§1005(e)(1)], unless it had the different intent that the latter [section] not be applied to the general run of pending cases.” Id., at 329. If anything, the evidence of deliberate omission is stronger here than it was in Lindh. The legislative history shows that Congress not only considered the respective temporal reaches of §§1005(e)(1), (2), and (3) together at every stage, but omitted paragraph (1) from its directive only after having rejected earlier proposed versions of the statute that would have included what is now paragraph (1) within that directive’s scope. Congress’ rejection of the very language that would have achieved the result the Government urges weighs heavily against the Government’s interpretation. See Doe v. Chao, 540 U. S. 614, 621-623. Pp. 7-20.

2. The Government argues unpersuasively that abstention is appropriate under Councilman, which concluded that, as a matter of comity, federal courts should normally abstain from intervening in pending courts-martial against service members, see 420 U. S., at 740. Neither of the comity considerations Councilman identified weighs in favor of abstention here. First, the assertion that military discipline and, therefore, the Armed Forces’ efficient operation, are best served if the military justice system acts without regular interference from civilian courts, see id., at 752, is inapt because Hamdan is not a service member. Second, the view that federal courts should respect the balance Congress struck when it created “an integrated system of military courts and review procedures” is inapposite, since the tribunal convened to try Hamdan is not part of that integrated system. Rather than Councilman, the most relevant precedent is Ex parte Quirin, where the Court, far from abst aining pending the conclusion of ongoing military proceedings, expedited its review because of (1) the public importance of the questions raised, (2) the Court’s duty, in both peace and war, to preserve the constitutional safeguards of civil liberty, and (3) the public interest in a decision on those questions without delay, 317 U. S, at 19. The Government has identified no countervailing interest that would permit federal courts to depart from their general duty to exercise the jurisdiction Congress has conferred on them. Pp. 20-25.

3. The military commission at issue is not expressly authorized by any congressional Act. Quirin held that Congress had, through Article of War 15, sanctioned the use of military commissions to try offenders or offenses against the law of war. 317 U. S., at 28. UCMJ Art. 21, which is substantially identical to the old Art. 15, reads: “The jurisdiction [of] courts-martial shall not be construed as depriving military commissions … of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be tried by such … commissions.” 10 U. S. C. §821. Contrary to the Government’s assertion, even Quirin did not view that authorization as a sweeping mandate for the President to invoke military commissions whenever he deems them necessary. Rather, Quirin recognized that Congress had simply preserved what power, under the Constitution and the common law of war, the President already had to convene military commissions-with the express condition th at he and those under his command comply with the law of war. See 317 U. S., at 28-29. Neither the AUMF nor the DTA can be read to provide specific, overriding authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President’s war powers, see Hamdi v. Rumsfeld, 542 U. S. 507, and that those powers include authority to convene military commissions in appropriate circumstances, see, e.g., id., at 518, there is nothing in the AUMF’s text or legislative history even hinting that Congress intended to expand or alter the authorization set forth in UCMJ Art. 21. Cf. Ex parte Yerger, 8 Wall. 85, 105. Likewise, the DTA cannot be read to authorize this commission. Although the DTA, unlike either Art. 21 or the AUMF, was enacted after the President convened Hamdan’s commission, it contains no language authorizing that tribunal or any other at Guantanamo Bay. Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential authority to conv ene mi litary commissions in circumstances where justified under the Constitution and laws, including the law of war. Absent a more specific congressional authorization, this Court’s task is, as it was in Quirin, to decide whether Hamdan’s military commission is so justified. Pp. 25-30.

4. The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949. Pp. 49-72.

(a) The commission’s procedures, set forth in Commission Order No. 1, provide, among other things, that an accused and his civilian counsel may be excluded from, and precluded from ever learning what evidence was presented during, any part of the proceeding the official who appointed the commission or the presiding officer decides to “close.” Grounds for closure include the protection of classified information, the physical safety of participants and witnesses, the protection of intelligence and law enforcement sources, methods, or activities, and “other national security interests.” Appointed military defense counsel must be privy to these closed sessions, but may, at the presiding officer’s discretion, be forbidden to reveal to the client what took place therein. Another striking feature is that the rules governing Hamdan’s commission permit the admission of any evidence that, in the presiding officer’s opinion, would have probative value to a reasonable person. Moreover, the accused and his civilian counsel may be denied access to classified and other “protected information,” so long as the presiding officer concludes that the evidence is “probative” and that its admission without the accused’s knowledge would not result in the denial of a full and fair trial. Pp. 49-52.

(b) The Government objects to this Court’s consideration of a procedural challenge at this stage on the grounds, inter alia, that Hamdan will be able to raise such a challenge following a final decision under the DTA, and that there is no basis to presume, before the trial has even commenced, that it will not be conducted in good faith and according to law. These contentions are unsound. First, because Hamdan apparently is not subject to the death penalty (at least as matters now stand) and may r eceive a prison sentence shorter than 10 years, he has no automatic right to federal-court review of the commission’s “final decision” under DTA §1005(e)(3). Second, there is a basis to presume that the procedures employed during Hamdan’s trial will violate the law: He will be, and indeed already has been, excluded from his own trial. Thus, review of the procedures in advance of a “final decision” is appropriate. Pp. 52-53.

© Because UCMJ Article 36 has not been complied with here, the rules specified for Hamdan’s commission trial are illegal. The procedures governing such trials historically have been the same as those governing courts-martial. Although this uniformity principle is not inflexible and does not preclude all departures from courts-martial procedures, any such departure must be tailored to the exigency that necessitates it. That understanding is reflected in Art. 36(b), which provides that the procedural rules the President promulgates for courts-martial and mil itary commissions alike must be “uniform insofar as practicable,” 10 U. S. C. §836(b). The “practicability” determination the President has made is insufficient to justify variances from the procedures governing courts-martial. The President here has determined, pursuant to the requirement of Art. 36(a), that it is impracticable to apply the rules and principles of law that govern “the trial of criminal cases in the United States district courts” to Hamdan’s commission. The President has not, however, made a similar official determination that it is impracticable to apply the rules for courts-martial. And even if subsection (b)’s requirements could be satisfied without an official practicability determination, that subsection’s requirements are not satisfied here. Nothing in the record demonstrates that it would be impracticable to apply court-martial rules here. There is no suggestion, e.g., of any logistical difficulty in securing properly sworn and authenticated evidence or in a pplyin g the usual principles of relevance and admissibility. It is not evident why the danger posed by international terrorism, considerable though it is, should require, in the case of Hamdan’s trial, any variance from the courts-martial rules. The absence of any showing of impracticability is particularly disturbing when considered in light of the clear and admitted failure to apply one of the most fundamental protections afforded not just by the Manual for Courts-Martial but also by the UCMJ itself: The right to be present. See 10 U. S. C. A. §839©. Because the jettisoning of so basic a right cannot lightly be excused as “practicable,” the courts-martial rules must apply. Since it is undisputed that Commission Order No. 1 deviates in many significant respects from those rules, it necessarily violates Art. 36(b). Pp. 53-62.

(d) The procedures adopted to try Hamdan also violate the Geneva Conventions. The D. C. Circuit dismissed Hamdan’s challenge in this regard on the grounds, inter alia, that the Conventions are not judicially enforceable and that, in any event, Hamdan is not entitled to their protections. Neither of these grounds is persuasive. Pp. 62-68.

(i) The appeals court relied on a statement in Johnson v. Eisentrager, 339 U. S. 763, 789, n. 14, suggesting that this Court lacked power even to consider the merits of a Convention argument because the political and military authorities had sole responsibility for observing and enforcing prisoners’ rights under the Convention. However, Eisentrager does not control here because, regardless of the nature of the rights conferred on Hamdan, cf. United States v. Rauscher, 119 U. S. 407, they are indisputably part of the law of war, see Hamdi, 542 U. S., at 520-521, compliance with which is the condition upon which UCMJ Art. 21 authority is granted. Pp. 63-65.

(ii) Alternatively, the appeals court agreed with the Government that the Conventions do not apply because Hamdan was captured during the war wi th al Qaeda, which is not a Convention signatory, and that conflict is distinct from the war with signatory Afghanistan. The Court need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signatories. Common Article 3, which appears in all four Conventions, provides that, in a “conflict not of an international character occurring in the territory of one of the High Contracting Parties [ i.e., signatories], each Party to the conflict shall be bound to apply, as a minimum,” certain provisions protecting “[p]ersons … placed hors de combat by … detention,” including a prohibition on “the passing of sentences … without previous judgment … by a regularly constituted court affording all the judicial guarantees … recognized as indispensable by civilized peoples.” The D. C. Circuit ruled Common Article 3 inapplicable to Hamdan because the conflict with al Qaeda is intern ationa l in scope and thus not a “conflict not of an international character. ” That reasoning is erroneous. That the quoted phrase bears its literal meaning and is used here in contradistinction to a conflict between nations is demonstrated by Common Article 2, which limits its own application to any armed conflict between signatories and provides that signatories must abide by all terms of the Conventions even if another party to the conflict is a nonsignatory, so long as the nonsignatory “accepts and applies” those terms. Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory who are involved in a conflict “in the territory of” a signatory. The latter kind of conflict does not involve a clash between nations (whether signatories or not). Pp. 65-68.

(iii) While Common Article 3 does not define its “regularly constituted court” phrase, other sourc es define the words to mean an “ordinary military cour[t]” that is “established and organized in accordance with the laws and procedures already in force in a country.” The regular military courts in our system are the courts-martial established by congressional statute. At a minimum, a military commission can be “regularly constituted” only if some practical need explains deviations from court-martial practice. No such need has been demonstrated here. Pp. 69-70.

(iv) Common Article 3’s requirements are general, crafted to accommodate a wide variety of legal systems, but they are requirements nonetheless. The commission convened to try Hamdan does not meet those requirements. P. 72.

(d) Even assuming that Hamden is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the Executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment. P. 72.

Justice Stevens, joined by Justice Souter, Justice Ginsburg, and Justice Breyer, concluded in Parts V and VI-D-iv:

1. The Government has not charged Hamdan with an “offense … that by the law of war may be tried by military commission,” 10 U. S. C. §821. Of the three sorts of military commissions used historically, the law-of-war type used in Quirin and other cases is the only model available to try Hamdan. Among the preconditions, incorporated in Article of War 15 and, later, UCMJ Art. 21, for such a tribunal’s exercise of jurisdiction are, inter alia, that it must be limited to trying offenses committed within the convening commander’s field of command, i.e., within the theater of war, and that the offense charged must have been committed during, not before or after, the war. Here, Hamdan is not alleged to have committed any overt act in a theater of war or on any specified date after September 11, 2001. More importantly, the offense alleged is not triable by law-of-war military commis sion. Although the common law of war may render triable by military commission certain offenses not defined by statute, Quirin, 317 U. S., at 30, the precedent for doing so with respect to a particular offense must be plain and unambiguous, cf., e.g., Loving v. United States, 517 U. S. 748, 771. That burden is far from satisfied here. The crime of “conspiracy” has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction, and does not appear in either the Geneva Conventions or the Hague Conventions-the major treaties on the law of war. Moreover, that conspiracy is not a recognized violation of the law of war is confirmed by other international sources, including, e.g., the International Military Tribunal at Nuremberg, which pointedly refused to recognize conspiracy to commit war crimes as such a violation. Because the conspiracy charge does not support the commission’s jurisdiction, the commission lacks au thorit y to try Hamdan. Pp. 30-49.

2. The phrase “all the guarantees … recognized as indispensable by civilized peoples” in Common Article 3 of the Geneva Conventions is not defined, but it must be understood to incorporate at least the barest of the trial protections recognized by customary international law. The procedures adopted to try Hamdan deviate from those governing courts-martial in ways not justified by practical need, and thus fail to afford the requisite guarantees. Moreover, various provisions of Commission Order No. 1 dispense with the principles, which are indisputably part of customary international law, that an accused must, absent disruptive conduct or consent, be present for his trial and must be privy to the evidence against him. Pp. 70-72.

Justice Kennedy, agreeing that Hamdan’s military commission is unauthorized under the Uniform Code of Military Justice, 10 U. S. C. §§836 and 821, and the Geneva Conventions, concluded that there is therefore no need to decide whether Common Article 3 of the Conventions requires that the accused have the right to be present at all stages of a criminal trial or to address the validity of the conspiracy charge against Hamdan. Pp. 17-19.

Stevens, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I through IV, VI through VI-D-iii, VI-D-v, and VII, in which Kennedy,Souter, Ginsburg, and Breyer, JJ., joined, and an opinion with respect to Parts V and VI-D-iv, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a concurring opinion, in which Kennedy, Souter, and Ginsburg, JJ., joined. Kennedy, J., filed an opinion concurring in part, in which Souter, Ginsburg, and Breyer, JJ., joined as to Parts I and II. Scalia, J., filed a dissenting opinion, in which Thomas and Alito, JJ., joined. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined, and in which Alito, J., joined as to all but Parts I, II-C-1, and III-B-2. Alito, J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined as to Parts I through III. Roberts, C. J., took no part in the consideration or decision of the case.

Eyewitness at Guantanamo

Via Talkleft, an eyewitness report from Guantanamo.

Horrible stuff.

We Have Great Students

Mahvish Khan, the author of the Washington Post op-ed My Guantanamo Diary, and the participant in this online chat, Realities of Guantanamo, was my student in International Law last year.

We really do have great students!

Hamdan Hearing to Go Forward

The Supreme Court put off deciding the jurisdictional challenge to the Hamdan case today. (This case is the challenge to Guantanamo's so-called military tribunals, bodies that threaten to give kangaroo courts a bad name.) But rather than reject the government's claim that Congress removed federal jurisdiction in the recent "Detainee Treatment Act" (AKA the Graham Amendment AKA a Really Bad Move), the Court punted the jurisdictional issue to the hearing on the merits.

This is cautiously good.

Military Commissions Off to a Rotten Start

Opinio Juris, not a blog given to limp liberalism, finds that the Guantanamo Military Commissions are off to an inauspicious beginning for a"Full and Fair " Process.

CIA Getting Cold Feet on Rendition/Torture?

First there was the NY Times story that "The Bush administration based a crucial prewar assertion about ties between Iraq and Al Qaeda on detailed statements made by a prisoner while in Egyptian custody who later said he had fabricated them" in order to avoid torture. (Robert Waldman notes that this did get reported months ago, although it seems to have gone down the memory hole.)

Now comes a suggestion in the UK's Observer -- sadly, not an utterly reliable source -- that CIA officers are getting cold feet about carrying on with these 'renditions'. But not because they produce false intelligence. No, it's the fear of law suits.

The Observer buried the leed: They start with the Yet Another Torture Allegation (YATA) story that An Ethiopian student who lived in London claims that he was brutally tortured with the involvement of British and US intelligence agencies. It seems that
Mr. Binyam Mohammed, 27,

says he spent nearly three years in the CIA's network of 'black sites'. In Morocco he claims he underwent the strappado torture of being hung for hours from his wrists, and scalpel cuts to his chest and penis and that a CIA officer was a regular interrogator.

Then there's a tie-in the Padilla case:

Western agencies believed that he was part of a plot to buy uranium in Asia, bring it to the US and build a 'dirty bomb' in league with Jose Padilla, a US citizen. Mohammed signed a confession but told his lawyer, Clive Stafford Smith, he had never met Padilla, or anyone in al-Qaeda.

That's interesting. But the really eye-catching part comes next:

A senior US intelligence official told The Observer that the CIA is now in 'deep crisis' following last week's international political storm over the agency's practice of 'extraordinary rendition' - transporting suspects to countries where they face torture. 'The smarter people in the Directorate of Operations [the CIA's clandestine operational arm] know that one day, if they do this stuff, they are going to face indictment,' he said. 'They are simply refusing to participate in these operations, and if they don't have big mortgage or tuition fees to pay they're thinking about trying to resign altogether.'

Could we actually be getting somewhere? And does this explain the nearly-rabid efforts by the Bush administration to keep the CIA exempt from suit for torture and 'cruel, inhuman and degrading' treatment?

But don't get too optimistic: Binyam Mohammed got shipped to Guantanamo in September. UK and US law may not let evidence acquired under torture into court. But, so far that rule is inoperative in Guantanamo.

The Barbarians Manning the Gates

Read Obsidian Wings, Requiem.

Really, please read this, especially the last two thirds or so. It's horrible.

Innocent people -- people the government itself says are innocent -- chained to the floor. Kept out of contact with their families. Denied reading materials in their language. Denied contact with their families. Denied not just contact with counsel, but even when they have lawyers, the lawyers are not told about hearings concerning the client -- not even that the clients have been exonerated. Maybe two years before the fact slinks into open court. And it gets aired only because the court is considering a habeas petition.

When trying to describe the behavior of this administration regarding detainees in Guantanamo and elsewhere, not even Kafka provides us with a vocabulary or a set of categories. Compared to the casual barbarity of this crew, Kafka seems a weak thing, a bloodless amateur.

But not to worry. Americans' tender consciences will henceforth be sheltered from having to face the facts about what this country's government is doing in our name. Thanks to the 'compromise' brokered in the Senate regarding the Graham Amendment the odds are that we need not worry about new habeas motions -- arguably need not even worry about the continued survival of existing habeas motions -- that might produce facts dissonant with our comfortable ideas of the rule of law, minimal due process, or the lower bounds below which US officials could not routinely sink. Show's over folks. Go about your business.

Barbarians are people who break what they don't understand. And the current administration does not understand due process, human rights, or even common minimum decency.

Must the Senate prostate prostrate itself before these barbarians? [unintentional humor there, I'm afraid...]

A Grim Compromise

Balkinization has a first take on what seems to be the language the Senate enacted today as a "compromise" on the Graham amendment.

It does not look at all good.

News Flash: Federal Judge Suspends Hicks Trial Pending SCT Ruling (Plus News on Bingaman/Graham/Levin Amendment(s))

According to wire service reports, the 'military tribunal' hearing the Hicks case is enjoined from proceeding pending a decision by the Supreme Court decision on the legality of the process.

US District Judge Colleen Kollar Kotelly said in her ruling that the parties "are enjoined from going forward with any and all legal proceedings associated with the military commission process."

She said the suspension will remain in effect "pending the issuance of a final and ultimate decision by the Supreme Court in that case."

This is the same Hicks case discussed in Is the Trial of David Hicks a War Crime?.

Of course, all bets are off if the Senate -- which has apparently agreed a very watered down version of the Bingaman Amendment to the Graham Amendment (with a vote scheduled today) were to cut off review in courts.... The new version is called the "Graham-Levin" Amendment, and although I'm uncertain if I've seen the final text, what I have seen does not look good.

When a text appears, look out for these issues:

• Can a detainee be heard to complain of being tortured? Or subjected to "cruel, inhumane or degrading" treatment?
• Can a detainee be heard to complain that he is in fact a POW?
• Can a detainee be heard to complain that he has been found not to be an enemy combatant, but is still being held?
• Can the rules of the tribunal be challenged for failing to meet minimum standards of due process?

Was Sen. Graham Intentionally Misleading or Was He Deceived?

Sen. Graham has a reputation as an honorable man, and of the GOP Senators has tended to be one of the better ones on the torture issue, probably due to his experience as an Army JAG officer. That makes his introduction of the Graham Amendment and especially the speech in support of the amendment so very hard to explain.

For a full-bore, devastating, refutation of the claim Sen. Graham made last week citing the danger of litigation abuse in support of his proposal to cut off meaningful judicial review of the conditions at Guantánamo -- arguments that may well have swayed several votes (including his own, if he believed what he was being told) -- see the dramatic deconstruction at Obsidian Wings. In the list that follows the titles are hilzoy's and Katherine's, but the rest is just my summaries of their much fuller and well-supported posts:

• About Them: Setting the scene, outline of Sen. Graham's sensational charges about litigation abuse by detainees.
• Medical Malpractice: Initial attempt to refute Graham's claim of litigation abuse; relies on general facts we know about medical abuse in Guantánamo.
• Medical Malpractice 2: Specific and detailed refutation of Sen. Graham, reporting the actual known facts regarding one of the two cases he himself cited as most supporting his claims: the prisoner claims "as a result of his detention at the U.S. military prison at Guantánamo Bay, he is now confined to a wheelchair with two broken vertebrae. He said military personnel and interrogators stomped on his back, dropped him on the floor and repeatedly forced his neck forward soon after his arrival at the prison." The so-called malpractice claim is that "he has been denied an operation that could save him from permanent paralysis".
• Medical Malpractice 3: Contains further allegations about other prisoners at Guantánamo who were refused basic medical treatment in order to coerce their cooperation, all drawn from a legal brief filed to contest medical mis-treatment. As hilzoy and Katherine note, "bear in mind that none of this information would be available if Graham's amendment had already been in force".
  
• Caught On The Battlefield Sen. Graham argued that one reason to deny judicial review is that detainees are people "caught on the battlefield as the Nazis were caught on the battlefield". This post demonstrates that there is vast and persuasive evidence that a number of the people held in Guantánamo were not caught in even the same country as any battlefield.
• Competent Tribunals: Sen. Graham describes the Guantánamo tribunals as "the Geneva Convention Protections on Steroids". As readers of this blog know, it's no such thing.
• Family Videos: Sen. Graham lampooned the courts for entertaining claims that Guantánamo detainees should be shown "family videos". Here's the actual, and quite horrible, story: Detainees reported that interrogators had previously impersonated defense counsel as a ruse to get detainees to talk to them; as a result the detainees mistrusted their actual lawyers. "The detainees ... asked their lawyers to get videos showing that their families, or people they trusted, approved of these lawyers. The lawyers did so; the resulting DVDs contained less than seventeen minutes of material, combined. ... All of this was done by counsel with security clearances, on equipment they had brought with them from the US". They then submitted these materials to the government, asking that they be cleared so that they could be shown to the detainees, and noting that they would be traveling to Guantánamo in twelve days. ... After various delays (... the government claimed that no one in all of Washington DC was capable of clearing the videos, that therefore they had to be sent to Guantánamo for clearance, and that transporting them would take two weeks), the attorneys were sent a message informing them of two things:
  

  (a) that the videos, etc. might not be cleared by the time they arrived, and
  
  (b) that if, on that visit, the detainees did not agree to be represented by them, the detainees would forfeit their right to counsel."

  It was this Catch-22 which led to the lawsuit.
• More Frivolity: Now With Human Mops! Sen. Graham ridiculed the idea that a detainee "from a family of longstanding al-Qaida ties" and who had thrown a grenade that killed an army medic could be heard to request that his interrogators not use cruel, inhumane, or degrading treatment against him. Sounds awful, right? How about three years of near-solitary confinement (with extra added alleged physical torture) for a child? And here's the detainee's allegation as to his recreational activities:

  He was left in these stress positions for a period of hours, and because he was not allowed to use the washroom, eventually urinated on the floor and upon himself and his clothing. Military police then poured a pine oil solvent onto the floor and onto Petitioner. With Petitioner on his stomach and his hands and feet cuffed together behind his back, they used Petitioner as a human mop, dragging him back and forth through the mixture of urine and pine oil. After he was returned to his cell, Petitioner was not allowed a change of clothes for two days.

If even half this stuff is true, do we really need to ensure that it be allowed to happen without any exterior checks -- which is what will happen if the Graham Amendment closes off judicial review?

Is the Trial of David Hicks a War Crime?

In Justice at Guantanamo? The Paradox of David Hicks, Prof. Devika Hovell of the University of New South Wales, Sydney, Australia, provides a very measured introduction to the legal quagmire which is the ongoing trial of "Australian Taliban" David Hicks.

Article 5 of the Third Geneva Convention, which requires all persons falling into enemy hands to be presumed to be a prisoner of war until determined otherwise by a competent tribunal. Rather than hold a hearing to determine Hicks's status, the US has instead presumed he is an 'enemy combatant' (a category not recognized by the Geneva Conventions, which divides people into soldier-POW or citizen-criminal). Irregulars, such as the Taliban in Afghanistan, likely fall within the "[m]embers of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces" who all are entitled to POW status. (Whether Hicks falls into this group may well be debatable, but it has yet to be debated.)

Unlike the new rules invented by the Pentagon, a mere "enemy combatant" gets a very very second class kind of trial, far below what the Geneva Convention would require for a POW. Aside from their fundamental injustice (see Condemned By the Company We Keep), Prof. Hovell reminds us that there's another problem too: " Failure to provide a prisoner of war with a fair trial constitutes a war crime."

The Bingaman Amendment

On Monday the Senate will consider the "Bingaman Amendment," a provision which would remove the habeas-stripping provision from the Graham Amendment adopted Thursday. Forty-nine Senators voted for the Graham amendment; a few were absent. The odds do not look at all good, even if one assumes that Sen. Wyden's vote was tactical and that Sen. Olympia Snow is educable on this issue.

The folks at The Million Phone March are providing an interface by which US voters can contact their Senators. It can't hurt.

Condemned By the Company We Keep

Today's New York Times carries an excellent and harrowing account of a Chinese father's so-far-fruitless attempt to get Chinese justice for his son, now sentenced to life imprisonment, Desperate Search for Justice: One Man vs. China. The Chinese criminal judicial process is presented as an oriental version of Kafka: only limited rights for the defendant, and those are routinely ignored (e.g. right to see evidence, or to cross examine). In this case the father actually managed to win an appeal, but that just got the case sent down for re-trial, which again was a farce. And the second appeal was decided on political grounds -- it seems that the specially selected panel thought that public confidence in the state required a scapegoat for the ugly crime, and here was a convenient scapegoat...

So my first reaction was that here was an object, and abject, account of why the rule of law matters, and why it is so important to protect the criminal rights of defendants. As the Times noted, the Chinese system had a 99.7 percent conviction rate last year out of 770,947 adjudicated cases. The Times suggests that "Conviction rates are also high in the United States, especially in federal criminal cases." Indeed, "More than 90 percent of federal defendants plead guilty," usually taking a plea bargain to avoid a trial. Those who elect a trial fare better: for the most recent period for which I could find data [circa 1986-2000, source: Andrew D. Leipold, Why Are Federal Judges So Acquittal Prone?, 83 Wash. U. L.Q. 151 (2005) (citing Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics Online tbl. 5.22)], "the average conviction rate for federal criminal defendants was 84% in jury trials, but a mere 55% in bench trials." These numbers are impressive when you figure that, in addition to the people determined to prove their innocence, a substantial subset of the people who go to trial are those whom the prosecutors think are so guilty that they offered little or nothing in the plea bargain.

Unfortunately, it seems that on balance the average Chinese criminal defendant gets a better deal than what this administration wants to offer persons it labels "enemy combatants" and ships off to Guantanamo.

On the basis of no evidence, I'm prepared to stipulate that the Guantanamo prisoners get better food -- at least when they are not on hunger strikes or attempting suicide due to years in solitary or near-solitary confinement.

There are several similarities, e.g. handpicked judges, beatings and other mistreatment of prisoners, life imprisonment (in China, post-trial, in Guantanamo includes pre-trial)

In other ways, the Chinese defendant gets, or at least can hope for, a better deal than under the "monsterous" procedures the US government offers alleged "enemy combatants" in Guantanamo: While it appears the Chinese rules often are not followed in practice, at least aspirationally they offer the hope of the following rights that the Bush administration does not want to see in Guantanamo: the right to know the charges against you, the right to know who your accusers are, the right to cross-examine prosecution witnesses (compare the facts of the Hamdan case), the right to call your own witnesses (compare the recent refusal to allow David Hicks to call expert witnesses), the right to proceedings in your own language or with competent translation, and (here we can blame the Senate too) the right to appeal the fundamental fairness of the proceeding. If nothing else, the railroaded Chinese defendants' families have visitations rights. Not even human rights groups get that in Guantanamo. [Incidentally, for a real double whammy, consider how badly the US government treats Chinese nationals held in Guantanamo whom even the US thinks are innocent of any crime.]

Is this the level to or below which we wish to sink?

Not in my name, please.

A Vote for Unreviewable Injustice

The Senate did a bad thing yesterday, voting for the so-called Graham Amendment, 49-42 (with McCain voting for it), which would eliminate the statutory right of habeas corpus for alien detainees held by the Department of Defense at Guantanamo. The point of this amendment is to undermine the Supreme Court's June 2004 decision in Rasul v. Bush.

For an explanation of the issues see Marty Lederman at SCOTUS Blog and then see Steve Vladeck for the advanced course in the horrible and complex federal courts and constitutional law implications.

Amazingly, the proposal has a (tentative) academic supporter, Julian Ku, at Opinio Juris.

Is This the Most Important Paragraph in Today's NYT?

It was buried deep in the print edition, but I wonder if this isn't the most informative paragraph in today's paper,

Striking Guantánamo Detainees Gain in Ruling. Judge Kessler's order is the latest development in a vast change in the legal situation at Guantánamo. For the first two years of the camp's existence, the military had total control of procedures there and what it told the public about them. But after a Supreme Court ruling in 2004 allowing lawyers to represent detainees and visit them, the military has had to contend with judicial rulings on procedures and with the ability of defense lawyers to provide an alternative narrative as to events there.

Shackled For No Crime; Acquitted But Not Told or Released

A commentator on the previous item points out this story, which I'd missed: Chinese Detainees Are Men Without a Country:

In late 2003, the Pentagon quietly decided that 15 Chinese Muslims detained at the military prison in Guantanamo Bay, Cuba, could be released. Five were people who were in the wrong place at the wrong time, some of them picked up by Pakistani bounty hunters for U.S. payoffs. The other 10 were deemed low-risk detainees whose enemy was China's communist government -- not the United States, according to senior U.S. officials.

More than 20 months later, the 15 still languish at Guantanamo Bay, imprisoned and sometimes shackled, with most of their families unaware whether they are even alive.

Do Americans understand what's being done in their name?

For more than three years these unpersons were not allowed a lawyer. When they got one, he was appalled.

One of the Uighurs was "chained to the floor" in a "box with no windows," Willett [his lawyer] said in an Aug. 1 court hearing...

All 15 Uighurs have actually been cleared for release from Guantanamo Bay twice, once after a Pentagon review in late 2003 and again last March, U.S. officials said. Seven other Uighurs were ruled to be enemy combatants and will continue to be detained.

Even after the second decision, however, the government did not notify the 15 men for several months that they had been cleared. "They clearly were keeping secret that these men were acquitted. They were found not to be al Qaeda and not to be Taliban," Willett said. "But the government still refused to provide a transcript of the tribunal that acquitted them to the detainees, their new lawyers or a U.S. court."

Having wrongly imprisoned them, treated them very harshly at the very least, and having held them long after it had reason to do so, the US government's position is that these victims should return to their home country -- China -- a place they fled in the first place due to a well-founded fear of persecution, and where their record of having been in Guantanamo is not likely to better their circumstances.

Words really fail me, here. Can anyone seriously claim to be proud of this conduct by our government? Is there no one in Congress who will act to stop the running sores on the national honor? We do still have a national honor don't we? Or has that gone missing too?

Oh, do I feel shrill today.

Canadian Court Treats Gitmo Like Cesspool

Via JURIST - Paper Chase: Judge orders Canada to stop questioning Gitmo teen:

A Canadian Federal Court judge has ruled that intelligence authorities must stop interrogating Guantanamo Bay [JURIST news archive] detainee Omar Khadr [CBC Khadr family profile]. Justice Konrad von Finckenstein's decision also slammed Canadian counterterrorism agents for gathering information at a place where he claims Canada's Charter of Rights and Freedoms [text] has been violated. Khadr has admitted killing a US medic [JURIST report] while fighting with the Taliban. He was captured when he was 15 years old and transferred to Guantanamo Bay after turning 16. The US never clarified Khadr's legal status or charged him but agents from the Canadian Security Intelligence Service [official website] and the Canadian Department of Foreign Affairs and International Trade [official website] have interviewed him at Guantanamo at least three times. Von Finckenstein's ruling prevents further interviews from occurring. The Globe and Mail has more.

Even the Prosecutors Thought the Game Was Rigged

You know things are bad when even the prosecutor complains the court is stacked against the defense. That's how bad it was (is) at Gitmo: Two Prosecutors Faulted Trials for Detainees:

As the Pentagon was making its final preparations to begin war crimes trials against four detainees at Guantanamo Bay, Cuba, two senior prosecutors complained in confidential messages last year that the trial system had been secretly arranged to improve the chance of conviction and to deprive defendants of material that could prove their innocence. ...

Among the striking statements in the prosecutors' messages was an assertion by one that the chief prosecutor had told his subordinates that the members of the military commission that would try the first four defendants would be "handpicked" to ensure that all would be convicted.

The same officer, Capt. John Carr of the Air Force, also said in his message that he had been told that any exculpatory evidence - information that could help the detainees mount a defense in their cases - would probably exist only in the 10 percent of documents being withheld by the Central Intelligence Agency for security reasons.

Captain Carr's e-mail message also said that some evidence that at least one of the four defendants had been brutalized had been lost and that other evidence on the same issue had been withheld.

Update: is it time to rethink the T-shirt?

Anti-Gitmo T-Shirt

Is this Gitmo Law School T-shirt clever protest, or just too disgusting?

It could be both. Even so, I don’t think I could wear one.

Three Headlines

Which gets it right?

1. Bush noncommittal on Guantanamo shutdown

2. Bush Open to Possibly Closing Gitmo Camp

3. Rumsfeld Says Guantánamo Isn’t Being Considered for Closing

My money is on #3.

Guantanamo Detainees Submit Pro Se Petitions For Release

Captives plead for release in personal notes to court. Today’s Miami Herald has an interesting story on the receipt by the US District Court for the District of Columbia of a batch of handwritten, sometimes one paragraph, petitions for help from Guantanamo detainees. The court docketed some of them, treating them as petitions for writs of mandamus, and has yet to take action on others. The article includes a nice discussion of the representation issue — will the petitioners represent themselves (which is a practical impossibility under the circumstances), or will the court appoint counsel and if so how.

In the latest twist in the Guantánamo Bay legal struggle, 16 war-on-terror prisoners ranging from a self-described nomadic shepherd to a disabled 78-year-old Afghan man are suing the U.S. government — acting as their own attorneys from behind the razor wire at Camp Delta in Cuba.

The U.S. District Court in Washington, D.C., docketed the cases on May 3 after a series of single-paragraph pleas from captives arrived in the court’s mail.

The latest suits are extraordinary because the 16 captives wrote to the court directly, without benefit of a lawyer, from their prison camp 1,300 miles away. Further, some of the prisoners suing on their own are illiterate.

”My wish from you is please inquire about my sad story. I’ve been detained here unlawfully and sinlessly,” writes Sharbat-Khan, age unknown, the self-described shepherd who said he lost 300 sheep and 10 camels when he was captured in Afghanistan and sent to the base in Cuba.

…

The 16 captives dictated their pleas to military payroll linguists at Guantánamo, according to military sources, who translated them and submitted them to military censorship.

Officers then sent them to the court by certified U.S. mail, along with 16 others, still unfiled, that arrived this week.

The Triumph of NewSpeak

We are now so deep into the era of Newspeak that otherwise sensible New York Times journalists can pen stuff like what follows without blinking. And editors run it. On page 23, which puts it one page ahead of the story that some woman who ran off because she couldn’t face her wedding was not in fact murdered by the fiancé the left behind.

Inquiry Finds Abuses at Guantánamo Bay: A high-level military investigation into accusations of detainee abuse at Guantánamo Bay, Cuba, has concluded that several prisoners were mistreated or humiliated, perhaps illegally, as a result of efforts to devise innovative methods to gain information, senior military and Pentagon officials say.

Perhaps illegally! Perhaps!

The F.B.I. agents wrote in memorandums that were never meant to be disclosed publicly that they had seen female interrogators forcibly squeeze male prisoners’ genitals, and that they had witnessed other detainees stripped and shackled low to the floor for many hours.

Perhaps illegally? Do we presume the FBI would lie about being an eyewitness to this? Or is there some theory in why the forcible squeezing of a prisoner’s, whether POW or not, genitals – regardless of the gender of the abuser — is now arguably legal?

… A senior Pentagon official, who spoke on condition of anonymity because the report has not been completed, said that the inquiry centered on what procedures were used at Guantánamo and why interrogators thought they were acceptable. The official said there was no evidence of physical mistreatment, but investigators were examining whether interrogators improperly humiliated prisoners or used psychological abuse.

There they go again “no evidence of physical mistreatment”? What’s a series of FBI reports? Chopped liver?

The Pentagon official said that the Schmidt report found that some interrogators devised plans that they thought were legal and proper, but in hindsight and with some clearer judgment might have been found to violate permissible standards.

Just how much “hindsight and clearer judgment” does it take to figure out that having “female interrogators forcibly squeeze male prisoners’ genitals” is not “legal and proper”? Just asking.

“People determined which interrogation technique they would use, made interrogation plans and wrote them out,” the Pentagon official said. “In retrospect, however, how they applied those judgments to a particular technique is what one might want to question.”

That sort of equivocation rings a bell.

The war “did not turn in Japan’s favor, and trends of the world were not advantageous to us.”

— Emperor Hirohito, Aug. 15, 1945

GITMO Tapes 'Explosive'

JURIST - Paper Chase: Gitmo tapes ‘as explosive as anything from Abu Ghraib’: A former lawyer for Australian terror suspect David Hicks [defense advocacy website] told a major law conference in Australia Monday that US military videotapes from the terror detention camp at Guantanamo Bay, Cuba, would be “as explosive as anything from Abu Ghraib” if they were ever released. In his address to LawAsia Downunder 2005 [conference website] Stephen Kenny said that there are some 500 hours of video of actions by the Immediate Reaction Force (IRF) at the camp who were responsible for prisoner control, and that the ACLU was pressing for release of the tapes …

The Navy Balked at Torture

According to the Boston Globe, Navy interrogators threatened to withdraw from the entire set of Guantanamo interrogations due to their disgust at the tactics being used by other interrogators — and actually withdrew in at least once case:

A top Navy psychologist reported to his supervisor in December 2002 that interrogators at Guantanamo were starting to use “abusive techniques.” In a separate incident that same month, the Defense Department’s joint investigative service, which includes Navy investigators, formally “disassociated” itself from the interrogation of a detainee, after learning that he had been subjected to particularly abusive and degrading treatment.

The two events prompted Navy law enforcement officials to debate pulling out of the Guantanamo operation entirely unless the interrogation techniques were restricted. The Navy’s general counsel, Alberto Mora, told colleagues that the techniques were “unlawful and unworthy of the military services.”

One again, the military lawyers stand out as the (only?) heroes of this sordid affair.

But don’t give me any of this “few bad apples” stuff… it’s just not at all credible.

Guantanamo Case Scorecard

Lyle Denniston has posted a roundup of the ongoing Guantanamo-related cases now active in the US courts, over at the SCOTUSblog.

YATA (JAG Heroics Dept.)

New York Daily News - World : Military lawyers at the Guantanamo Bay terrorist prison tried to stop inhumane interrogations, but were ignored by senior Pentagon officials, the Daily News has learned.

Judge advocates - uniformed legal advisers known as JAGs who were assigned to a secret war crimes task force - repeatedly objected to aggressive interrogations by a separate intelligence unit at Camp Delta, where Taliban and Al Qaeda suspects have been jailed since January 2002.

But Pentagon officials “didn’t think this was a big deal, so they just ignored the JAGs,” a senior military source said.

The military lawyers’ actions had never been disclosed and are the first known cases of lower-level officers resisting interrogations at the Cuban camp that might constitute torture. Some officials called them “unsung heroes” for risking their careers by crossing senior officials who approved the techniques.

(via Balkinization)

The lawyers’ objections were that battlefield interrogation methods, where slapping around a prisoner might be justifiable if it immediately saved lives, were immoral and possibly illegal if used on prisoners far from a war zone and long after their capture, three sources said. Abuse cases reported in FBI memos obtained by the American Civil Liberties Union are now being probed by the Justice Department and the U.S. Southern Command, the Pentagon unit that oversees Gitmo.

One of the judge advocates, an Air Force officer, left Gitmo and then filed a Jan. 15, 2003, “Memorandum for the Record,” sources said. According to portions read to The News, the memorandum noted conflicting interrogation policies at Gitmo and objected to aggressive techniques.

These were raised repeatedly with the Southern Command by their secret unit, the Criminal Investigation Task Force, a 150-person team of investigators from each branch of the military. Its mission was to work with the FBI and Secret Service to identify detainees’ fitness for military war crimes trials.

On the same day of the 2003 Memorandum for the Record, Rumsfeld temporarily rescinded his December 2002 order permitting “stress positions,” the use of dogs and “mild” physical contact to intimidate uncooperative prisoners, because of legal concerns.

The objectionable interrogations were done by Joint Task Force-Guantanamo, a separate intelligence unit seeking tips on terror threats, sources said.

I’ve said it before — the JAG lawyers are the only ones coming out of this with dignity.

YATA to the Nth (Official)

Holden at First Draft, Pentagon Confirms Detainee Allegations:

A forthcoming report of a Pentagon investigation of the treatment of detainees in GITMO confirms allegations that defense department interrogators used sexual humiliation tactics during interrogations. When detainees previously complained of routine torture at GITMO Don Rumsfeld insisted that they were treated “humanely,” and Pentagon officials said terrorists were trained to fabricate torture allegations. We can now assume that such assertions are no longer opperative.

…

Church’s report found that interrogators used sexually oriented tactics and harassment to shock or offend Muslim prisoners, the senior Pentagon official said. The official said that the military would not condone “sexual activity” during interrogation, but that good interrogators “take initiative and are a little creative.”

“They are trying to find the key that will get someone to talk to them. Using things that are culturally repulsive is okay as long as it doesn’t extend to something prohibited by the Geneva Conventions.”

I’ve got some news for that “senior Pentagon official”. The Geneva Conventions specifically prohibit “Outrages upon personal dignity, in particular, humiliating and degrading treatment.”

YATA (Canadian Child Dept.)

Canadian Was Abused at Guantánamo, Lawyers Say

Lawyers for a Canadian detainee at Guantánamo Bay, Cuba, who was captured in Afghanistan when he was 15 years old asserted in a document released Wednesday that he was repeatedly abused by his American jailers.

…

Mr. Khadr spent three years in a small cell in Guantánamo, and his lawyers have previously asserted that the United States government has violated the Convention on the Rights of the Child. The treaty, to which the United States is a signatory, condemns the recruitment of child fighters by groups like Al Qaeda and obliges nations to help children who become involved in armed conflict.

Where’s the outrage? Very strong, but insufficiently broadly based, I’d say.

YATA

BBC News reports Moroccans claim Guantanamo abuse:

The five defendants claim that on numerous occasions while in detention at Guantanamo Bay, they were stripped naked and handcuffed before having dogs set upon them.

…

All five defendants plead not guilty to having links with al-Qaeda and Osama Bin Laden, or to having undergone military training in Afghanistan.

When asked by the judge at Rabat’s appeal court why they had signed testimonies to the contrary, they replied that they had been blindfolded for much of their time at Guantanamo and were still blindfolded when they were told to sign testimonies once in Morocco.

The Moroccan judge, the article makes clear, doesn’t want to hear about it.

Another Briton's Account of Torture and Inhumanity at Gitmo

Martin Mubanga was held at Gitmo, was found to be an enemy combatant by the first tribunal which ‘evaluated’ his case — not surprisingly since they wouldn’t let him have access to any evidence or witnesses that might support his case. Why? The witnesses were not easily accessible in Guantanamo!

Now he’s out, and he’s describing a combination of torture and seriously inhumane treatment, despite having been, he says plausibly, utterly innocent.

How I entered the hellish world of Guantanamo Bay: For many months after Mubanga was seized in Zambia with the help of British intelligence and sent to Guantánamo, the American authorities maintained that he was a dangerous ‘enemy combatant’, an undercover al-Qaeda operative who had travelled from Afghanistan on a false passport and appeared to be on a mission to reconnoitre Jewish organisations in New York. But documents obtained by The Observer now reveal that by the end of last October the Pentagon’s own legal staff had grave doubts about his status, and had overturned a ruling that he was a terrorist by Guantánamo’s Combatant Status Review Tribunal.

Like the other three men who were released last month, Moazzam Begg, Feroz Abbasi and Richard Belmar, Mubanga was held for one night at Paddington Green police station on his return to Britain and questioned. He was released unconditionally, the police having concluded within just a few hours that there was no evidence to sustain charges of terrorism.

While it’s true that Mubanga’s allegations of mistreatment are just allegations, they are consistent with memos by FBI agents who visited Gitmo, as later released under the Freedom of Information Act. Thus, this seems like additional plausible evidence of what’s been going on in Rumsfeld’s and Gonzales’s little playground. (Sadly, treatment may have been even worse before some prisoners were shipped to Gitmo.) The kangaroo court nature of the status hearing is consistent with the account in Judge Joyce Hens Green’s recent opinion

Contrast this view of reality with that provided at Washington dinner parties.

Major Gitmo Ruling by Joyce Hens Green

Word is that this new decision by Judge Joyce Hens Green is important and (mostly) well-reasoned.

Early news coverage: Guantanamo Bay Military Reviews Ruled Illegal, U.S. Denies Guantánamo Inmates’ Rights, Judge Says.

I haven’t read it yet. Late tonight, I hope, if I get my work done…

YATA (Yet Another Torture Allegation)

Via Jurist: Released Briton details assault, torture at Guantanamo

More Ugly Gitmo Allegations

JURIST : Prostitutes used in Gitmo torture, lawyer for Australian detainee says.

(Much of) The Right Wing Is Now In Denial on Torture

At the AALS last week, I heard a (formerly) respected law professor announce to a room that he had looked carefully and he didn’t see any evidence of systematic torture by the US. It was — although he didn’t use these words — the ‘few bad apples’ all over again. At least a few of us in the packed room expressed our shock audibly — which isn’t something you usually get at such a polite, even staid, event.

There’s clearly a lot of this denial going around, which is why Marty Lederman’s latest item demolishing the “best defense of the administration’s record on torture” is well worth reading.

In her article, MacDonald agrees that the 2002 OLC Memo was “hair-raising,” and “understandably caused widespread alarm.” She argues, however, that the OLC Memo “had nothing to do” with the interrogation “debates and experiments unfolding among Pentagon interrogators in Afghanistan and Cuba,” and had no connection to the abuses at Abu Ghraib, or to the extreme methods of military interrogation that have been alleged at Guantanamo and elsewhere. MacDonald further argues that, in contrast to the CIA, Pentagon officials have not come close to violating the law; that the military’s techniques have been “light years from real torture”; that the interrogation policies in Cuba and Afghanistan are “irrelevant” to what happened in Abu Ghraib; and that, in fact, the Armed Forces have been unduly hamstrung by a culture of legalism that is an unfortunate byproduct of “fanatically cautious” Pentagon lawyers steeped in the outmoded ways of the Geneva Conventions.

This version of the story appears to be selective, at best.

There’s clearly much here that’s not fully in the open, notably the extent to which the Torture Memos were driven by a need to attempt to justify CIA abuses which had already happened.

But given the number of reports we do have of overly coercive questioning to say the least, no one should be allowed to claim that there wasn’t some sort of pattern and practice at work, creeping its way from the CIA to other interrogation centers, destroying whatever moral authority the US might hope to claim, inflaming the locals against us, and creating a new cadre of detainees (and families) who will hate us and try to destroy us.

Whether it also will make a mockery of the concepts such as the rule of law that we try to teach our students still remains to be seen.

Digby Said It

I’ve been trying to write something comprehensive about the the state of the torture memos, US torture policy, and the coming confirmation hearings of the Enabler, one White House Counsel Gonzales. But it’s too depressing.

So just read Hullabaloo. Digby says most of it. (And even has one small tiny ray of light — not quite everyone is going to take Gonzales lying down.)

The American Gulag

The US holds maybe hundreds of non-citizens, all captured abroad (we are told), incarcerated in Guantanamo and in other secret prisons around the world. The Bush administration plans to hold them up to forever.

Of course, there is a difference between the Soviet Gulag, which was aimed at saboteurs, dissidents, or people who somehow got on the wrong end of officialdom, and the US Gulag, which is we are told aimed merely at the foreign version of the same.

Whether the creation of a secret archipelago of prisons and coercive questioning facilities will inevitably fail to be deployed against US citizens is a question that one is not permitted to ask in public, as it is too far outside the permitted consensus. So put that issue aside.

Ask instead whether from a moral, political, or even legal point of view, the fact that only foreigners are incarcerated for life without trial (or indeed any rights, it appears), at the complete and unconstrained pleasure of the super-imperial presidency, gives us much in the way of bragging rights over the former Soviet Union.

What’s that? Our gulag is much smaller? And our policy this week is not to torture people, the last two years notwithstanding? And that nice Mr. Bush (with Justice Thomas’s endorsement, to his and the Court’s eternal shame) promises that all the people being held really deserve it, so who needs complications like a trial?

Well, that’s alright then!

The Administration Treats Torture As the New Normal

The people on the ground believed for some strange reason that their authorization to torture came straight from Rumsfeld and maybe even the White House. What on earth could have given them such a strange idea? See the Washington Post and the New York Times.

The new documents include several incidents of threatened executions of teenage and adult Iraqi detainees

Smart pundits are now predicting that Rumsfeld is being kept around to take the fall in six to twelve months for both the torture and the failure of the Iraq war. Meanwhile, even relatively mainstream inside-the-beltway types such as Matthew Yglesias now view the prospect of a war crimes prosecution with weary equanimity:

Laura Rozen looks at the latest developments on the torture front and remarks that it “is not1 at all inconceivable that some day not too many years off Rumsfeld and Bush will face arrest if they travel abroad for command responsibility for war crimes, like Pinochet.” Indeed, not only is it conceivable, I think in some ways it has to be regarded as expected at this point. I only hope the good judges of the rest of the democratic world recognize that it would be counterproductive to hand down indictments before this crew has left office, as such action would only inflame the embers of brain-dead nationalism that have done so much to get them re-elected.

The really interesting thing about the spate of stories we’ve seen over the past two weeks isn’t so much that widespread torture was taking place (we knew that already) but that large swathes of the security and intelligence establishment issued various protests. It’s testament both to the basic integrity of most of America’s security professionals and to the utter moral depravity of the people in the Bush-Gonzalez-Rumsfeld-Wolfowitz-Feith-Cambone chain that this happened. In a decent world, Al Gonzalez would face some rough questions about all this at his confirmation hearings, but I don’t think we live in that world.

This tired acceptance, this learned helplessness, in the face of wrist slaps for the unlucky grunts (much more than a few bad apples—we’re talking pattern and practice here) and non-investigations of the guilty is itself tragic.

“What the documents show so far was that the abuse was widespread and systemic, that it was the result of decisions taken by high-ranking officials, and that the abuse took place within a culture of secrecy and neglect,” [ACLU lawyer Amrit] Singh said.

Much as it pains me, the failure of all three branches of our government to deal with this in a timely way seems like the strongest argument yet for the International Criminal Court—clearly even our domestic checks and balances are not up to the task. The military’s internal nonjudicial punishments meted out for, say, graphically threating to kill detainees, are vastly insufficient for what are clear war crimes.

CIA Has Secret Prison at Guantánamo

At Guantanamo, a Prison Within a Prison:

Within the heavily guarded perimeters of the Defense Department’s much-discussed Guantanamo Bay prison in Cuba, the CIA has maintained a detention facility for valuable al Qaeda captives that has never been mentioned in public, according to military officials and several current and former intelligence officers.

But to the military’s credit, they required the CIA to follow some of the most basic treaty obligations:

The U.S. base at Guantanamo Bay thus provided the CIA with an isolated venue devoid of the sensitive international politics. But it came with strings attached.

The U.S. military, which controls the base, required the agency to register all detainees, abide by military detention standards and permit the ICRC some level of access.

“If you’re going to be in my back yard, you’re going to have to abide by my rules” is how one defense official explained it.

Normally, as I’ve noted before, the evidence is that the CIA doesn’t bother with the Geneva conventions, and indulges in “ghost detainees” and who knows what sort of physical and psychological pressure:

CIA detainees, by contrast, are held under separate rules and far greater secrecy. Under a presidential directive and authorities approved by administration lawyers, the CIA is allowed to capture and hold certain classes of suspects without accounting for them in any public way and without revealing the rules for their treatment.

You still have to wonder why exactly the CIA couldn’t just lock these guys up at Langley? Is there any risk at all that they could get to a lawyer, or that if it did it would do them any good? Why does the CIA have to hold these guys abroad? Can there be any legitimate reason other than the desire to do things that our law would not allow? And if that is the reason, then I firmly believe it is an illegal motive. Our federal government is created by the Constitution. It has only those powers the constitution grants it. The power to act lawlessly abroad is not one of those powers. The Constitution constrains the CIA abroad just as it does domestically; if it’s wrong for our agents to torture people here, it’s equally wrong anywhere. And remember, they are formally our agents, We the People are formally their masters; what they do, my fellow citizens, they do in our names, more’s the pity.

Briton Says Torture Continues at Guantánamo

Guardian Unlimited | Special reports | Guantánamo torture and humiliation still going on, says shackled Briton:

Fresh allegations about a regime of torture and humiliation inflicted on detainees by their American captors at Guantánamo Bay have been made by a Briton still held there, according to Foreign Office documents seen by the Guardian.

The claims by Martin Mubanga, from London, are the latest to surface from the prison where the US holds 550 Muslim men it claims are terrorists in conditions that have sparked worldwide condemnation.

Mr Mubanga, 31, alleges that only months ago he was kept shackled for so long that he wet himself, and then was forced to clean up his own urine. He claims to have been threatened, that an interrogator stood on his hair, and that he was subjected to extremes of temperature rising to 36C (97F). He was kept chained to the floor by his feet for an hour during a welfare visit from a British government official.

Where the hell is the outrage? The Senate hearings? The — excuse the term — Democrats?

Not that the British government is exactly covering itself with glory here either:

Mr Mubanga was arrested in Zambia and has been held as a terrorist for more than two years without access to a lawyer. During a visit by a Foreign Office official on October 3, a record of which the Guardian has seen, Mr Mubanga was kept trussed up for the entire 60 minutes. The official noted: “Martin’s feet were shackled to the ring in the floor.” Mr Mubanga also said his weight had plunged in captivity from 84kg to 75kg (13st 3lb to 11st 11lb), and that he got tired and dizzy and did not get enough food.

He is allowed 30 minutes of exercise every second day.

…

According to the Foreign Office letter, the US claims Mr Mubanga attacked his interrogator, despite the fact he almost certainly would have been shackled: “The US authorities said that their records show that Martin grabbed the interrogator’s hand and applied a pressure point hold. The interrogator stated that he would call the military police and Martin let go without further incident.”

A Foreign Office spokeswoman said: “We have raised with the US authorities the allegations of maltreatment raised with us by Mr Mubanga during a welfare visit. The US authorities have investigated them and their response is that they are without merit.

“At this stage we would not propose to pursue this further.”

The Foreign Office had originally refused to give Mr Mubanga’s family details of his claims of ill-treatment, blaming the data protection act.

US Plans Permanent Incarceration Facility at Guantánamo--How Long Until US Suspects Are Sent There?

Permanent jail set for Guantánamo:

… the Pentagon is quietly planning for permanency at the U.S. detention center at Guantánamo Bay, The Herald has learned.

Pentagon planners are now seeking $25 million to build a state-of-the-art 200-cell concrete building meant to eventually replace the rows of rugged cells fashioned from shipping containers at Camp Delta.

At the same time, the Army is creating a full-time, professional guard force — a 324-member Military Police Internment and Resettlement Battalion that will replace a temporary, mostly reserve force at Guantánamo.

A Department of Army memorandum to Congress obtained by The Herald envisions the new military police force being included in the 2005 and 2006 budgets. ”This action is part of a systematic process to enhance Army’s capabilities required to defend the Nation’s interests at home and abroad,” says the undated memo from the Army’s legislative liaison office.

• Hold some of the current prisoners in durance vile forever.
• Establish a permanent rotating population of unpersons to be radicalized and sent home to hate us.
• Ship US suspects out instead of giving them due process at home — like the next Padilla.

Bush Admin Endorses Use of Evidence Derived from Torture

They have no shame at all, and no concept of due process or humanity.

I have to run to a meeting, but here’s JURIST - Paper Chase with the info:

US military panels reviewing the detention of 550 prisoners at Guantanamo Bay may use evidence obtained by torture in deciding whether the detainees are enemy combatants, the US government has said. Principal Deputy Associate Attorney General Brian Boyle said the practice was allowed during a Thursday hearing at a district court reviewing the detention of some foreigners at the US naval base in Cuba. Statements obtained by torture have been barred from admission in US courts for about 70 years. Attorneys for the detainees argued that the use of such evidence violated due process and fundamental fairness, but Boyle argued that the detainees were not protected under the constitution. The review panels are allowed to use evidence that is determined to be reliable, Boyle said. Earlier this week the International Committee of the Red Cross issued a report finding that the US had used tactics “tantamount to torture” on detainees at Guantanamo. The challenges to the detentions are being heard by District Judge Richard J. Leon of the US District Court for the District of Columbia. JURIST’s Paper Chase has ongoing coverage of developments at Guantanamo Bay. AP has more.

Today's Torture News

I hate having to write headlines like that one.

• New York Times, Red Cross President Plans Visit to Washington on Question of Detainees’ Treatment…showing how seriously the Red Cross takes the US’s apparent non-compliance with basic human rights norms
• Washington Post, U.S. Generals in Iraq Were Told of Abuse Early, Inquiry Finds: “A confidential report to Army generals in Iraq in December 2003 warned that members of an elite military and CIA task force were abusing detainees, a finding delivered more than a month before Army investigators received the photographs from Abu Ghraib prison that touched off investigations into prisoner mistreatment.”
  
  But did anyone do anything as a result of the report? We don’t know:

  “Of the Herrington report, a Pentagon official said top generals in Iraq, including Lt. Gen. Ricardo S. Sanchez, who at the time directed U.S. forces there, reported the alleged abuses to officials at U.S. Central Command, which oversees military activities in the Middle East. The official said TF 121 was investigated, but he could not provide results.
  
  ‘The Herrington report was taken very seriously,’ said the official, who spoke on the condition of anonymity because the report has not been released.”

• New York Times editorial, Abu Ghraib, Caribbean Style. Key quote:

  The White House, the Pentagon and the Justice Department clearly have no intention of addressing the abuse. Indeed, Mr. Bush has nominated one of the architects of the administration’s prisoner policy, the White House counsel Alberto Gonzales, to be attorney general. The general who set up the system at Guantánamo is now in charge of prisons in Iraq.
  
  Only Congress can hold the administration accountable and begin to repair the damage to American values and America’s image caused by the mistreatment of prisoners.

Have they gone mad in the White House or were they born that way?

Red Cross Accuses US of Torture at Guantanamo

Red Cross Finds Detainee Abuse in Guantánamo

The International Committee of the Red Cross has charged in confidential reports to the United States government that the American military has intentionally used psychological and sometimes physical coercion “tantamount to torture” on prisoners at Guantánamo Bay …

The report of the June visit said investigators had found a system devised to break the will of the prisoners at Guantánamo, who now number about 550, and make them wholly dependent on their interrogators through “humiliating acts, solitary confinement, temperature extremes, use of forced positions.” Investigators said that the methods used were increasingly “more refined and repressive” than learned about on previous visits.

“The construction of such a system, whose stated purpose is the production of intelligence, cannot be considered other than an intentional system of cruel, unusual and degrading treatment and a form of torture,” the report said. It said that in addition to the exposure to loud and persistent noise and music and to prolonged cold, detainees were subjected to “some beatings.” The report did not say how many of the detainees were subjected to such treatment.

“Some beatings” and psychological torture. Proud of your government?

For the record, the Pentagon denies everything—despite having been told by the White House in the torture memos that anything which wasn’t intended to leave permanent damage was probably OK. And despite testimony by guards admitting that they engaged in at least mild torture (“harsh and coercive treatment”) for 14-hour sessions.

When some administration memorandums about coercive treatment or torture were disclosed, the White House said they were only advisory.

Last month, military guards, intelligence agents and others described in interviews with The Times a range of procedures that they said were highly abusive occurring over a long period, as well as rewards for prisoners who cooperated with interrogators. The people who worked at Camp Delta, the main prison facility, said that one regular procedure was making uncooperative prisoners strip to their underwear, having them sit in a chair while shackled hand and foot to a bolt in the floor, and forcing them to endure strobe lights and loud rock and rap music played through two close loudspeakers, while the air-conditioning was turned up to maximum levels.

Oh, and by the way, all those implausible accusations of weird sexual abuse…they might be true too:

Some accounts of techniques at Guantánamo have been easy to dismiss because they seemed so implausible. The most striking of the accusations, which have come mainly from a group of detainees released to their native Britain, has been that the military used prostitutes who made coarse comments and come-ons to taunt some prisoners who are Muslims.

But the Red Cross report hints strongly at an explanation of some of those accusations by stating that there were frequent complaints by prisoners in 2003 that some of the female interrogators baited their subjects with sexual overtures.

The Tie That Might UnBind

Salim Ahmed Hamdan has smart lawyers.

Guantanamo Detainee Asks Supreme Court to Intervene: Attorneys for a detainee at the U.S. military prison in Guantanamo Bay, Cuba, have asked the Supreme Court for emergency intervention to settle the legality of the military commissions set up by the Pentagon to prosecute hundreds of the alleged al Qaeda and Taliban fighters.

Lawyers representing a Yemeni detainee accused of serving as Osama bin Laden’s bodyguard, joined by former military justice lawyers, argued that they be allowed to skip the appellate stage of their case and have the Supreme Court make a decision now. They say waiting while the case wends its way through the judicial process will leave the government’s commission process in limbo and prolong the imprisonment of detainees, some of whom have been held at the U.S. military prison for nearly three years.

A federal judge ruled on Nov. 8 that the special military trials, revived by the Pentagon after the Sept. 11, 2001, terrorist attacks, are illegal and cannot continue. He agreed with Hamdan’s lawyers that the detainees — considered “enemy combatants,” not prisoners of war, by the Bush administration — were not receiving fair legal treatment under the commissions process and had no effective ability to challenge the accusations against them.

Not to mention that Chief Justice Rehnquist may not be able to sit on the case now due to ill health, but may be well (or replaced) later. And a tie vote upholds the lower court decision. And the District Court ruled for Hamdan. And who knows if maybe the Court of Appeals might go the other way, shifting the effect of a hung court…

Today's Hero: Judge James Robertson

Federal District Judge James Robertson ruled today that the Guantanamo military tribunals are illegal as constituted. News coverage.

Update: NYT story.

Torture at Guantánamo

Tomorrow’s New York Times has an extensive report on torture at Guantánamo:

Broad Use Cited of Harsh Tactics at Base in Cuba: Many detainees at Guantánamo Bay were regularly subjected to harsh and coercive treatment, several people who worked in the prison said in recent interviews, despite longstanding assertions by military officials that such treatment had not occurred except in some isolated cases.

The people, military guards, intelligence agents and others, described in interviews with The New York Times a range of procedures that included treatment they said was highly abusive occurring over a long period of time, as well as rewards for prisoners who cooperated with interrogators.

One regular procedure that was described by people who worked at Camp Delta, the main prison facility at the naval base in Cuba, was making uncooperative prisoners strip to their underwear, having them sit in a chair while shackled hand and foot to a bolt in the floor, and forcing them to endure strobe lights and screamingly loud rock and rap music played through two close loudspeakers, while the air- conditioning was turned up to maximum levels, said one military official who witnessed the procedure. The official said that was designed to make the detainees uncomfortable as they were accustomed to high temperatures both in their native countries and their cells.

Such sessions could last up to 14 hours with breaks, said the official, who described the treatment after being contacted by The Times.

Remember: A vote for Bush legitimates his first term. Thus, a vote for Bush is a vote for torture.

The NYT story makes two other important points: Sunlight really is the best disinfectant—the torture regime continued essentially unabated until it got publicity in April of this year. And, Guantánamo’s torture “migrated to Abu Ghraib”; the ‘few bad apples’ theory is now utterly in tatters.

… the first four detainees now facing war crimes charges before a military tribunal at the base were specifically chosen because they had not been harshly treated and therefore would be less likely to make any embarrassing allegations.

The people who worked at the prison also described as common another procedure in which an inmate was awakened, subjected to an interrogation in a facility known as the Gold Building, then returned to a different cell. As soon as the guards determined the inmate had fallen into a deep sleep, he was awakened again for interrogation after which he would be returned to yet a different cell. This could happen five or six times during a night, they said. This procedure was described by those who participated as part of something called “Operation Sandman.”

Much of the harsh treatment described by the sources was said to have occurred as recently as the early months of this year. After the scandal about mistreatment of prisoners at the Abu Ghraib prison in Iraq became public in April, all harsh techniques were abruptly suspended, they said.

The new accounts of mistreatment at Guantánamo provide fresh evidence about how practices there may have contributed to the abuses later uncovered at Abu Ghraib. One independent military panel said in a report that the approach that was being used at Guantánamo “migrated to Abu Ghraib,” where abuses grew sharply. The vigorous debate within the administration about what techniques were permissible in interrogations was set off when the Justice Department provided a series of memorandums to the White House and Defense Department providing narrow definitions of torture. In February 2002, Mr. Bush ordered that the prisoners at Guantánamo were to be treated “humanely and, to the extent appropriate with military necessity, in a manner consistent with” the Geneva Conventions.

In March 2002, a team of administration lawyers accepted the Justice Department’s view, concluding in a memorandum that President Bush was not bound by either the Convention Against Torture or a federal antitorture statute because he had the authority to protect the nation from terrorism. When some of the memorandums were disclosed, the administration tried to distance itself from the rationale for the harsher treatment.

At the request of military intelligence officials who complained of tenacious resistance by some subjects, Mr. Rumsfeld approved a list of 16 techniques for use at Guantánamo in addition to the 17 methods in the Army Field Manual in December 2002. But he suspended those approvals in January 2003 after some military lawyers complained they were excessive and possibly unlawful.

In April 2003, after a review, Mr. Rumsfeld issued a final policy approving of 24 techniques, some of which needed his permission to be used.

They knew what they wanted to have happen, they knew what they didn’t want to know, and they got what they wanted.

How can anyone of conscience vote to endorse this despicable conduct?

Government Stonewalls on Guantanamo Detainees

U.S. Stymies Detainee Access Despite Ruling, Lawyers Say (washingtonpost.com)

More than three months after the Supreme Court declared that hundreds of detainees at the military prison at Guantanamo Bay, Cuba, have the right to challenge their imprisonment in U.S. courts, none has appeared in a courtroom.

Of the 68 alleged al Qaeda and Taliban fighters who have so far petitioned for access to federal court in Washington, only a handful have even spoken to their lawyers. With some held for nearly three years on the U.S. Navy base, the detainees remain largely precluded from receiving legal help because of protracted negotiations with the Justice Department over lawyers’ security clearances, the government’s insistence on monitoring attorney-client conversations and the number of visits lawyers will be allowed, defense attorneys told a U.S. District Court judge yesterday.

Losing in the Supreme Court has produced….no change at all.

Seymour M. Hersh Says Senior Officials Ignored Warnings About Atrocities

The NYT reports that Seymour M. Hersh’s new book says the highest level military and civilian officials in the administration — including Rice and Rumsfeld — ignored warnings about abuses at Guantánamo and Abu Ghraib.

Prison Scandal: New Book Says Bush Officials Were Told of Detainee Abuse: Senior military and national security officials in the Bush administration were repeatedly warned by subordinates in 2002 and 2003 that prisoners in military custody were being abused, according to a new book by a prominent journalist.

Seymour M. Hersh, a writer for The New Yorker who earlier this year was among the first to disclose details of the abuses of prisoners at Abu Ghraib in Iraq, makes the charges in his book “Chain of Command: The Road From 9/11 to Abu Ghraib” (HarperCollins), which is being released Monday. …

Mr. Hersh asserts that a Central Intelligence Agency analyst who visited the detention center at Guantánamo Bay, Cuba, in the late summer of 2002 filed a report of abuses there that drew the attention of Gen. John A. Gordon, a deputy to Condoleezza Rice, the White House national security adviser.

But when General Gordon called the matter to her attention and she discussed it with other senior officials, including Defense Secretary Donald H. Rumsfeld, no significant change resulted. Mr. Hersh’s account is based on anonymous sources, some of them secondhand, and could not be independently verified.

Although a number of senior officials were briefed on the analyst’s findings of abuse, the high-level White House meeting did not “dwell on” that question, but rather focused on whether some of the prisoners should not have been held at all, the book says. A White House official confirmed Saturday that this meeting was held and reiterated that the focus, when the matter was referred to Mr. Rumsfeld, was on whether people were being improperly held.

Mr. Hersh also says that a military officer involved in counterinsurgency operations in Iraq learned of the abuses at Abu Ghraib in November and reported it to two of his superiors, Gen. John P. Abizaid, the regional commander, and his deputy, Lt. Gen. Lance Smith.

“I said there are systematic abuses going on in the prisons,” the unidentified officer is quoted as telling Mr. Hersh. “Abizaid didn’t say a thing. He looked at me - beyond me, as if to say, ‘Move on. I don’t want to touch this.’ “

But Capt. Hal Pittman, a Central Command spokesman, said in a statement Saturday, “General Abizaid does not recall any officer discussing with him any specific cases of abuse at Abu Ghraib prior to January 2004, nor do any of the officers of the Centcom staff who travel with him.”

Note the non-denial denial: in response to a charge about ignoring a warning about general and systemic abuse, the response is that the General ‘does not recall any officer discussing with him any specific cases of abuse.’

Note also that Pentagon is worried about Hersh’s book. Earlier today the Washington Note reported that the Pentagon let off a pre-emptive press strike against what it expected Hersh would be saying. The core of that campaign is the zillion whitewash reports issued in the past weeks, all designed to shield senior officials from any examination of their responsibilities.

They should be worried. I don’t know if ignoring reports of abuse is technically a war crime under these circumstances — so much depends on exactly what they were told, and how — but it has to be close enough to be worrying. There does come a point where closing your eyes to the evidence is a form of complicity, although I can’t say from the NYT article alone that this conduct reaches that high bar.

But whatever you call it, if Seymour Hersh is right again (and his accuracy record is imperfect) ignoring these warnings looks pretty raw.

Col. Brownback Update

During a fruitless search to find out the upshot of the motion to disqualify Col. Brownback from sitting in the first Guantanamo ‘trial’, I found this gem in the New Zealand Herald, regarding a byplay in the Salim Ahmed Hamdan proceeding:

Asked by the defence whether he believed the orders establishing the military commission were lawful, Colonel Brownback paused, and to the surprise of some observers, said: “I choose not to answer that question at this time.” Asked again by the military prosecutor, Commander Scott Lang, Colonel Brownback replied that he had “a duty to comply” with any order, even if it was “questionable”.

Does this mean anything, or just that he’s learned to be cagey?

The Value of Zealous Representation

The NY Times has an eye-opening article on the first day of the Guantanamo proceeding (I hesitate to call it a “trial”) against Salim Ahmed Hamdan. First War-Crimes Case Opens at Guantánamo Base.

Naturally, since this is the first case of the new system, and the eyes of the nation and the world (especially the Islamic world) are upon it, the government has taken every precaution to make sure the proceeding both is and is seen as fair. The defense has been given adequate resources (NOT!). And the panel has been carefully selected to reflect the high standard of even-handedness and professionalism that characterizes the military justices system at its best.¹

Oops.

Much of the morning was taken up with Commander Swift’s efforts to portray Colonel Brownback as incapable of serving impartially because of extensive contacts with senior Pentagon officials who helped set up the military tribunals. Colonel Brownback, who came out of retirement to serve on a tribunal, seemed annoyed at Commander Swift’s request that he step aside and said he would forward it to the Pentagon. By the end of the day Commander Swift had challenged the suitability of four other panel members.

Commander Swift said that Colonel Brownback should be disqualified because he said at a July 15 meeting with some lawyers that he did not believe Guantánamo detainees had any rights to a speedy trial. Colonel Brownback sharply denied making the remark.

But hours later at the conclusion of the day’s proceedings, Commander Swift stunned Colonel Brownback when he said he had just learned that an audiotape of the meeting existed and he would like to include it in his request that Colonel Brownback be disqualified. Colonel Brownback covered his face with his hands for several moments and then agreed to have the tape recording included.

If it turns out that the presiding officer of the tribunal has lied in open court about his views and actions in order to remain in charge of the proceedings, it will taint — perhaps irretrievably — the entire proceedings.

And while Col. Peter E. Brownback III is as entitled to a presumption of innocence until proven guilty just as much as, well, the defendant, if it should transpire that this tape contradicts his courtroom remark, I trust there is a court-martial and a disbarment in his future.

¹ Honest: at its best, the military justice system is really very good indeed; arguably in criminal cases it is in some ways superior to the civil justice system.

Trials or Travesties?

The Washington Post reports that Trials Set To Begin For Four at Guantanamo. In addition to the many fundamental structural failures (e.g. limited rights of appeal, limited access to counsel and witnesses) which are damaging our national reputation, stay alert for news of little-discussed but critical biases in implementation of the rules.

• Have the defendants’ lawyers had access to sufficient translation resources to meaningfully prepare the defense? [Earlier reports suggested the answer was “not at all”.]

• Will the court hear arguments that the trials cannot go forward in light of the Supreme Court’s decisions earlier this year? [I’d be surprised.]

• Does a civilian court have jurisdiction to enjoin these trials? [I have no idea, and suspect it’s an interesting question.]

• Are the defense lawyers in a separate chain of command from the prosecution? [This is the norm in military trials — but was not the case in Guantanamo the last I heard, admittedly some months ago. It’s a vastly important question, not just because of the potential for subtle pressure on the advocates — at least one of whom has already suffered a career-ending non-promotion, but also because it means there is no higher-up likely to go to bat for needed resources.]

Gitmo Torture Regime Documented

Digby points to a report by the Center for Constitutional Rights based on the testimony of three UK citizens released from Gitmo. It describes an organized and systematic regime of psychological and physical torture to break the detainees.

If these charges are true, then this is not a few bad apples, but policy. And the person responsible for that policy is up for re-election soon.

Separately, information about doctors who at least failed to report physical torture and in some cases were complicit in enabling psychological abuse is emerging.

Government Must Justify Guantanamo Detention Next Week

AP reports that the legal sparring over the merits of the Guantanamo detentions is heating up:

A federal judge ordered the Bush administration on Thursday to explain its detention of a Libyan at a U.S. military prison in Cuba by next week, the first such demand since the Supreme Court ruled in June that foreign detainees can use American courts to challenge their confinement.

U.S. District Judge Reggie B. Walton set a deadline of next Tuesday for the government to lay out why he should not order the release of Salim Gherebi, who is among nearly 600 men from about 40 countries who have been held with little or no contact with the outside for two years or more.

…

A case filed on Gherebi’s behalf was already pending at the Supreme Court when the justices decided 6-3 to allow U.S. judges to hear detainee lawsuits.

The high court sent the case back to California, where it was filed, and the San Francisco-based 9th U.S. Circuit Court of Appeals transferred it to Walton’s court earlier this month.

In a brief order, Walton said that if government lawyers cannot meet the Tuesday night deadline or are concerned about “revealing classified information that might jeopardize national security,” they can request more time. The judge said he must be told by Friday if the government will seek to have the case dismissed.

Walton said military officers should not try to persuade Gherebi, who was captured in Afghanistan, to waive his legal rights in the meantime.

… Walton was named to the bench by President Bush.

A case to watch!

Military to Start Restricted Guantanamo Hearings ASAP

Talkleft spots a Wall St. Journal article reporting that Guantanamo Hearings May Begin Today:

Under the procedure, which went under a dry run yesterday, with military personnel playing the part of detainees, prisoners will appear before a three-man panel of senior officers. That panel will examine the dossiers assembled after hours of interrogations, give the detainees a chance to speak and then determine whether they should be set free. The advocates will be U.S. government employees, who, unlike lawyers, will not be honor-bound to serve the best interests of their client.

…

Under the current plan, three separate tribunals will hear 72 cases a week so each detainee can get a hearing within four months. Unlike traditional civilian justice, the government will have one big advantage: The burden of proving innocence will rest with the detainees. Detainees won’t get lawyers, but “personal representatives,” military officials without any legal background, who will offer advice to prisoners, lay out unclassified portions of their dossiers and help inmates make their case to the tribunal.

It’s hard to tell without more direct information, but from the sound of it these status hearings may well suffice to meet our Geneva Convention obligations. Article 5 of the Third Geneva Convention states, “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy,” then “such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. “

So the decision to hold the hearings, however belatedly, is actually a positive step, despite their being so limited and despite their being held in secret. Furthermore, in my opinion, attacks on this procedure as one-sided or unfair or lacking in due process miss the point: none of those ‘defects’ are actually problems in a Geneva Convention status hearing. They’re just par for the course. (As noted below, these same defects become serious issues if (and only if) anyone tries to argue that the fact of the status hearing obviates the need for a full habeas hearing if the tribunal classifies the detainee as an unperson ‘enemy combatant’.)

The hearings could, I imagine, produce one of three outcomes in each case: 1) “Detainee is freed,” 2) “Detainee is a POW,” 3) “Other” — a category that will be primarily what the administration calls enemy combatants, but might include a finding that a person is, say, a civilian suspected of criminal activity.

The first two categories are easy. We know how to free people, we purport to know how to treat POWs, and despite various bits of speculation by the right wing, I for one do not believe that a recognized POW will get any traction in our courts, even via habeas, unless he alleges something on the order of torture (and maybe not even then until after the war is over).

The legally interesting category is the third one.

Having had a status hearing, is the non-POW Guantanamo detainee entitled to any further process, and if so what? I suspect that the government will want to argue that this initial status hearing is all the process that is due. But I certain this is not going to suffice to preclude a habeas motion from being heard, and think it likely that if the habeas petition will be decided on its own merits, the court will not treat the status hearing’s conclusion as binding (although it may treat it as persuasive).

It is clear even from the limited description reprinted by TalkLeft that these status hearings do not suffice to meet the minimum requirements set by the Supreme Court in the Hamdi case. The complete absence of access to counsel and witnesses alone are fatal flaws. But does the Hamdi decision — which concerned a US citizen held in the US — apply to foreign citizens held in Guantanamo? I think it does. Other than in some immigration matters, we (are supposed to) give foreigners in the US the same due process we give US citizens. Now that the Supreme Court has said that Guantanamo is like US soil for habeas purposes, it ought to follow that the same due process applies there as applies here, citizenship notwithstanding. In particular, the petitioner ought to be allowed a lawyer, and have at least the limited ability to attempt to call witnesses

But resolving that argument could add another layer of delay….

Paging Lt. Kafka

It came via “Yuks,” a jokes mailing list run by Gene Spafford, so at first I didn’t think it was for real:

It appears that the US navy spokesman put up to answer journalists’ questions about the US detention centre at Guantanamo Bay, Cuba, is one Lieutenant Mike Kafka. As the article on The Register (www.theregister.co.uk) observes: “Yes, you’re reading that correctly. A man named Kafka has been deployed to field questions about a prison where the criminals are only vaguely charged with crimes, can’t speak to lawyers and likely will never get out.” Any resemblance this reality bears to an actual fiction is entirely coincidental.

But it’s true. (The item is worth reading by the way for its account of how Photoshop got deployed at Guantanamo.)

More Allegations of Torture at Gitmo

I missed this one when it came out last week (alterted via Ken Sain):

Swede reignites Guantanamo Bay torture fears. In his first interviews to the Swedish media, Mehdi Ghezali said US interrogators subjected him to a string of abuses, including being shackled for hours, sleep deprivation, no contact with the outside world, being forced to endure cold temperatures for up to 14 hours at a time and attempts to humiliate him sexually.

“There was always psychological torture, but the last month they used more physical torture,” Mr Ghezali told Swedish Radio.

His claims are in line with accounts from other Guantanamo detainees who have been released.
…

Swedish Radio’s correspondent described Mr Ghezali as withdrawn, solemn and tired.

A devout Muslim, Mr Ghezali insisted he was not involved in terrorist activities.

“I don’t think they would have released me if I were,” he told the radio.

He said he was arrested in December 2001 in Pakistan and turned over to US authorities who shipped him to Guantanamo in January 2002.

He claimed he was visiting a friend in Pakistan when local villagers captured him and sold him to Pakistani police, who then handed him over to the US.

…

Mr Ghezali said he was interrogated daily by US guards, but stopped answering their questions after the first six months. He said he remained silent for the next two years.

One time, the guards brought an American woman into his cell to try to get him to have sex with her.

“They tried to make me lose my faith. Maybe they wanted to use it against me so I would cooperate,” he said.

The only physical traces Mr Ghezali has from his detention are teeth in poor condition and the loss of feeling in part of his left foot after an ankle chain was clamped too tight.

There is indeed a striking consistency to the stories released detainees are telling. I suppose someone will suggest some sort of common plan or purpose on their part, but given the extent to which the detainees are kept isolated while being held that seems very unlikely.

An almost amusing footnote to this story is the Swedish public’s annoyed reaction to the $67,425 cost of flying Mehdi-Muhammed Ghezali home.

Apparently, the US required a special flight direct from Gitmo, rather than taking him to, say, Miami and letting him board a commercial flight. (I imagine one reason for this is to prevent any detainee from setting foot in the US, with all the jurisdictional consequences that implies.)

Guantanamo Flap about Ghost Detainees May Be Misplaced

The LA Times runs a story entitled Pentagon Reportedly Aimed to Hold Detainees in Secret which reports that before the Supreme Court ruled in the Guantanamo decision the DoD held a meeting in which it mapped out a plan to create a special class of ‘ghost’ detainees whom it would not acknowledge holding. The purpose of this exercise was, the LA Times tells us, to undermine the Pentagon’s already rather ungenerous policy of limited one-sided annual reviews of the status of detainees.

Pentagon officials tentatively agreed during a high-level meeting last month to deny that process to some detainees and to keep their existence secret “for intelligence reasons,” senior defense officials said Thursday.

Under the proposal, some prisoners would in effect be kept off public records and away from the scrutiny of lawyers and judges.

…

Two senior defense officials said they believed that the prisoners who would be denied the reviews might be held by the CIA, rather than the Defense Department.

A U.S. intelligence official said Thursday that the CIA was not holding any detainees at Guantanamo, but added that the annual reviews would not apply to CIA prisoners elsewhere.

Some bloggers are getting very excited about this but I think for the wrong reasons.

It’s clear from news reports that the DoD never expected to lose the Guantanamo case. Having lost it, though, I see nothing in this report of pre-decision meetings to suggest a current policy of undermining the Court’s decision. It’s true that the Pentagon is now “going ahead with the status hearings:. It’s also true that the Supreme Court’s decision doesn’t say in so many words that someone spirited away from Guantanamo to a place where the Court’s writ might not run necessarily keeps his right to sue, but that is the almost inevitable consequence of the Padilla decision, especially if one looks at Justice Kennedy’s concurrence, which I think will control on this issue.

So, until I hear otherwise, I am going to trust the military on this one, and indeed the DoD’s official line is that “everybody under DOD custody will be subject … to the annual review process that has been outlined previously.”

Of course the key words are “under DOD custody”. The great unanswered question remains what rights — if any — the people held by the CIA will have. (Consider how bad the position is of the ones they admit to having, then imagine what happens to the ones held in secret).

The Guantanamo situation remains very troubling, but the Supreme Court has ensured that what might have been a stop on an American Gulag will — soon, I hope — become instead a regime whose harshness is cabined by legality. There is currently little reason to feel sanguine that the same can be said about the interrogation/detention centers run abroad by the CIA.

It's a Start: DoD to Hold Status Hearings for Detainees

At last. The US will hold Status Hearings for all the detainees in Guantanamo. Article 5 of the Third Geneva Convention requires such hearings, stating, “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy,” then “such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”

In other words, enemy fighters should be treated as POWs — not civilian law-breakers, much less “enemy combatants” — until they have had an initial hearing which can be and usually is before a military tribunal.

We were supposed to do that two years ago, but at last Pentagon Sets Hearings for 595 Detainees.

Note that these hearings are completely separate from the habeas hearings the Supreme Court has said must be held. But to the extent that some detainees are released, or classified as POWs, the number of habeas hearings may shrink.

Unlike some right-wing doomsayers I think it unlikely that POWs have a claim to habeas relief during the duration of the conflict. But to the extent that they can claim the war is over now that we’ve handed over sovereignty, they too might have a claim that could be heard. (But it would lose.)

Safire In Outer Space

William Safire has a column which, even by the relaxed standard of his work in the last 12 months or so, is filled with Cheney-style delusion. Jack Balkan nails most of the big points, so I’ll just add the one Jack missed.

It is beyond weird to suggest that Sec. Rumsfeld has at any relevant times been solicitous of the rights of detainees. The military tribunals he proposed were justly attacked by all and sundry as lacking almost all the elements of fairness and due process.

The extent to which these rules were deficient is highlighted by the recent announcement that the separate annual ‘reviews’ planned by Rumsfeld & Co. are now known to be seriously deficient.

Why Safire feels a need to repeatedly kow-tow to Rumsfled is mysterious. If it’s for past favors they must be well past, since I can’t think of a really good leak Safire’s gotten recently. If it’s a down payment for future favors, it better be a big one.

Today's Trifecta--What Does it All Mean? (Pt. II: Guantanamo)

“What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.” And the answer to that question is “affirmative.”

So Guantanamo is not like the Antarctic, a place with no law (cf. Smith v. US). I strongly think this is the right result, but I’m not entirely happy with how the majority got there.

I would have relied on the treaty, the US’s perpetual control over the territory, and the ousting of any relevant foreign power other than the mythical quality called “sovereignty” which the Cuban government retains—little more than a first right of reversion if the US leaves. The Court mentions this, but an awfully big chunk of its decision relies on domestic habeas jurisdiction, predicated on the district court’s assertion of power over the detainees’ custodian, the Secretary of Defense. (The dissent has a field day with this duality.)

To get to where it wants to go, the majority plays a little fast and loose with precedent, arguing the leading case of Eisentrager was overruled in 1973, a dubious claim. I won’t go into the details—inside baseball for lawyers—except to say that I think Justice Kennedy’s concurrence is much more elegant, and avoids the troubles pointed out by the dissent. Kennedy’s view would not reform the law as much, but it would do what needed doing. Kennedy would grasp the bull of the leading precedent, Eisentrager by the horns, and limit it much more closely to its facts than the government wanted:

The facts here are distinguishable from those in Eisentrager in two critical ways, leading to the conclusion that a federal court may entertain the petitions. First, Guantanamo Bay is in every practical respect a United States territory, and it is one far removed from any hostilities. The opinion of the Court well explains the history of its possession by the United States. In a formal sense, the United States leases the Bay; the 1903 lease agreement states that Cuba retains “ultimate sovereignty” over it. Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903, U. S.-Cuba, Art. III, T. S. No. 418. At the same time, this lease is no ordinary lease. Its term is indefinite and at the discretion of the United States. What matters is the unchallenged and indefinite control that the United States has long exercised over Guantanamo Bay. From a practical perspective, the indefinite lease of Guantanamo Bay has produced a place that belongs to the United States, extending the “implied protection” of the United States to it. Eisentrager, supra, at 777–778.

The second critical set of facts is that the detainees at Guantanamo Bay are being held indefinitely, benefit of any legal proceeding to determine their status. In Eisentrager, the prisoners were tried and convicted by a military commission of violating the laws of war and were sentenced to prison terms. Having already been subject to procedures establishing their status, they could not justify “a limited opening of our courts” to show that they were “of friendly personal disposition” and not enemy aliens. 339 U. S., at 778. Indefinite detention without trial or other proceeding presents altogether different considerations.

Justice Scalia responds to these arguments in footnote four of his dissent but I do not find this part of his argument very persuasive:

JUSTICE KENNEDY recognizes that Eisentrager controls, ante, at 1 (opinion concurring in judgment), but misconstrues that opinion. He thinks it makes jurisdiction under the habeas statute turn on the circumstances of the detainees’ confinement—including, apparently, the availability of legal proceedings and the length of detention, see ante, at 3–4. The Eisentrager Court mentioned those circumstances, however, only in the course of its constitutional analysis, and not in its application of the statute. It is quite impossible to read §2241 as conditioning its geographic scope upon them. Among the consequences of making jurisdiction turn upon circumstances of confinement are (1) that courts would always have authority to inquire into circumstances of confinement, and (2) that the Executive would be unable to know with certainty that any given prisoner-of-war camp is immune from writs of habeas corpus. And among the questions this approach raises: When does definite detention become indefinite? How much process will suffice to stave off jurisdiction? If there is a terrorist attack at Guantanamo Bay, will the area suddenly fall outside the habeas statute because it is no longer “far removed from any hostilities,” ante, at 3? JUSTICE KENNEDY’s approach provides enticing law-school-exam imponderables in an area where certainty is called for.

Scalia claims Kennedy mis-reads Eisentrager, confusing the constitutional and statutory parts of the case. I don’t think that’s right—the existence of the constitutional right implies that the statues must be read in conformity with it if possible, for reasons Scalia explains earlier in his own opinion. While the parade of horribles Scalia presents do indeed deserve a home on an exam, the advanced course would ask students to discuss the way in which a purportedly formalist judge uses pragmatic arguments when it suits him…and whether the distinction really means that much any more in this age of judicial opportunism.

The dissent (Scalia, with Rehnquist and Thomas) has two points: First, Eisentrager (as they read it) controls, and that’s just fine, so there’s no hearing despite the many differences noted by Kennedy. Second, if Congress wants to change this, it could. That’s actually an under-appreciated truth: this whole litigation would have been unnecessary if Congress had the guts to legislate decency. But then, this whole series of cases would have been unnecessary if Congress had had the guts not to vote Bush the authority to start a war whenever he liked.

Scalia also kindly gives us the short version of what this case stands for:

Today’s opinion, and today’s opinion alone, overrules Eisentrager; today’s opinion, and today’s opinion alone, extends the habeas statute, for the first time, to aliens held beyond the sovereign territory of the United States and beyond the territorial jurisdiction of its courts. No reasons are given for this result; no acknowledgment of its consequences made. By spurious reliance on Braden the Court evades explaining why stare decisis can be disregarded, and why Eisentrager was wrong. Normally, we consider the interests of those who have relied on our decisions. Today, the Court springs a trap on the Executive, subjecting Guantanamo Bay to the over-sight of the federal courts even though it has never before been thought to be within their jurisdiction—and thus making it a foolish place to have housed alien wartime detainees.

One odd part of the debate between the two sides has to do with what if anything we learn from pre-revolutionary English practice. The majority notes that prerogative writs, such as habeas corpus, ran to the “excluded jurisdictions”—even where ordinary statutes did not. The dissent replies that those precedents shouldn’t apply to foreign territory, but it goes off the rails when it says, “All of the dominions in the cases the Court cites—and all of the territories Blackstone lists as dominions, see 1 Blackstone *93–*106—are the sovereign territory of the Crown: colonies, acquisitions and conquests, and so on. It is an enormous extension of the term to apply it to installations merely leased for a particular use from another nation that still retains ultimate sovereignty.”

Personally, I cannot see how given the realities of the situation this is anything but at most a minute extension. And to see even the minute part you have to think that “sovereignty” empty of content still matters, a theory only a formalist could love.

Although neither side mentions this, I think that to the extent that the dissent might be correct in saying that the older (or even newer, as in early or mid-20th century) English cases suggest in dicta or otherwise that once “abroad” habeas might be available to citizens but might not be available to detained indigenes, I think the majority was on firm ground in ignoring that aspect of those cases. It is indisputable that the older cases were driven by deep racist assumptions about local peoples that permeated both the British colonial and the British domestic judiciary. This country is right to take the spirit of those decisions and lose the dross.

The dissent gets another thing right, more of less, noting the peculiarity of a ruling that,

confers upon wartime prisoners greater habeas rights than domestic detainees. The latter must challenge their present physical confinement in the district of their confinement, see Rumsfeld v. Padilla, ante, whereas under today’s strange holding Guantanamo Bay detainees can petition in any of the 94 federal judicial districts. The fact that extraterritorially located detainees lack the district of detention that the statute requires has been converted from a factor that precludes their ability to bring a petition at all into a factor that frees them to petition wherever they wish—and, as a result, to forum shop.

That is an odd result. But it is less odd and disturbing than one that left detainees no recourse in our courts even if they were being tortured. Not that torture could ever happen, of course.

Same Old Detention Rules, or Almost?

Will someone with a Wall St. Journal account please read this Talkleft item, New Guantanamo Rules Not Much Better Than Old Rules, follow it to the WSJ link, and then tell me how the so-called “alternate procedure” (described there as a contingency plan if the Supreme Court rules against the current prison regime) differs in any notable particulars from the series of one-sided hearings the Pentagon announced it planned anyway way back in February.

From the short description they sound very much alike.

Supreme Court To Decide Major Cases Soon

As is commonly the case, the Supreme Court has left most of its major decisions for the end of the term. This year, however there are a greater number of important cases, with more major consequences, than usual. Some will likely be decided today or tomorrow.

There are seven cases I’m watching with particular interest.

Freedom and Republican Government

1. Cheney v. U.S. District Court has to do with the Congress’s powers to force disclosure by the Executive, in this case who attended Vice President’s Cheney’s secret meetings with oil executives in which they mapped out US energy policy. A finding for the Executive would advance the Royalist vision of the executive; a finding for Congress would preserve the status quo, or maybe eliminate some doubt about whether Congress really has the authority it has claimed for at least a generation. There are also many ways to split the baby. [Decided 6/24]

2. Ashcroft v. ACLU is a First Amendment challenge to the Child Online Protection Act. There’s some justice on both sides, but were the court to rule that web publishers must require their readers to prove their age before being allowing them to view any web pages that might infringe the vague “harmful to minors” standard, it would transform the Internet into gated communities…or drive web sites abroad. Again, there are ways the court could punt, too, and I wouldn’t be shocked by yet another remand in this torturous case. Unfortunately, the Supreme Court has a tendency to lose patience at some point with cases that bounce up and down and try to decide them. That could be ugly.

3. I’ve written previously about Hiibel v. 6th Judicial Dist. Court of Nevada, calling it a case to watch. I’m watching this one with particular interest, since it will have so much impact on any potential US law on national ID cards. [Decided 6/21]

The biggest cases, however, have to do with four wars: the War on Drugs, the War on Terror, the War in Afghanistan and the War in Iraq.

Of these cases, three will help define how decent a country we are. But one, the most important of all, will decide whether or not we are still a free country. Sound melodramatic? I wish it were.

Decency

4. If the US invades a foreign country, kidnaps a foreign national, drags him back to the US to try him on charges of aiding the murder of a US DEA agent, but it’s all a ghastly mistake and he’s acquitted for lack of evidence, can he sue for damages and false imprisonment? If the relevant statute applies to domestic conduct only, do we look to where the kidnaping happened (Mexico) or where it was planned (Washington) as the relevant place for deciding if the statute applies? Those are some of the questions in Sosa v. Alvarez-Machain and U.S. v. Alvarez-Machain. Another is the Royalist claim that Congress lacks the authority to make rules restricting the Executive Branch’s kidnaping of foreigners abroad on the theory that this would infringe the President’s foreign affairs powers, and harm the War on Terrorism.

5. Rasul v. Bush and Al Odah v. U.S put the decency and Presidential power issues in starker terms, as they challenge the claim that our government can create an anything-goes zone in Guantanamo Bay, free from any judicial interference or review—even a writ of habeas corpus—a writ which can only be suspended in wartime, and which has not been suspended since the Civil War. An underlying issue is the extent to which the US Navy station in Guantanamo is inside or outside US jurisdiction given that Cuba retains formal sovereignty—but not other power or control whatsoever so long as the US uses the territory for a naval base. Prior relevant posts on these cases in my Guantanamo section, especially these:

• Guantanamo: Our Collective Shame
• Even If US Courts Don’t Have Jurisdiction Over Guantanamo, There Is No Recourse to Cuban Courts
• US Jurisdiction in Guantanamo — Some Complexities
• What Motivated the Cert Grant In Guantanamo Case? Linda Greenhouse Thinks She Knows
• Not As Hypothetical As I’d Like
• ‘Senior Defense Official’ Plans to Hold Guantanamo Detainees Pretty Much Forever

6. Then there’s the odd case of Hamdi v. Rumsfeld. Hamdi is a US citizen captured in Afghanistan, some disputed distance from if not actually on the field of battle. Our government labeled him an “enemy combatant,” said he had neither the rights of a US citizen nor of a POW, and has him on ice in solitary, in a military prison. It has not charged him with a crime, and claims no duty to do so. Here there’s no question about jurisdiction for the a writ of habeas corpus since Hamdi is now in the US. What’s at issue is whether the government’s uncorroborated statement that Hamdi was “affiliated with a Taliban military unit and received weapons training” (note: not even ‘took up arms against the US’!) is unquestionable and final, or if Hamdi gets a day in court. Again, the case raises question about the extent of executive power in “wartime”—especially since the War on Terror is a “war” that likely has no ending point.

The Big One

I think all the cases above matter a great deal. A bad decision in any of them — and given this court one has to expect some bad decisions in some of them — will make this country less free, less self-governing, or less decent. But none of these would be fatal to our democracy. The harms Hiibel might do could be undone by legislation; Hamdi perhaps less so, but at least the untrammeled hunting license it would create would only apply to US citizens abroad in, one hopes, battlefield or near-battlefield conditions. But Padilla is different.

7. I don’t think the public really understands how much is at stake in Rumsfeld v. Padilla. I’ve written about it many times, but only recently worked out that the issue is even graver than I previously understood.

The basic question in Padilla is very simple: can the federal government grab a citizen off the street and hold them in a military prison without charging them with a crime, without giving them a hearing or a trial, without access to lawyers, family, friends. And, can it do it indefinitely. If the answer is yes it can, then our citizenship is devalued to nothing better than that of the citizens of Argentina during their military dictatorship, a period in which thousands disappeared into military jails, many never to emerge.

Does that sound over-wrought, given there’s only one person so far, and he hasn’t by all accounts, been tortured (other than being confined in solitary with no prospect of emerging) or killed? I don’t think so for two reasons.

First, we don’t call them “precedents” for nothing. If we set the precedent that people can be grabbed off the street, next time Ashcroft, or some future Ashcroft, or some horrible cross between Nixon, John Adams and Burr, won’t bother going through the civilian justice system at all (which is how Padilla’s case got attention — he was first held as an ordinary criminal, and it was only when the government realized it didn’t have the evidence to try him that they decided to reclassify him as an enemy of the state illegal combatant, and put him in the brig). Next time, whenever that is, the victim will just vanish.

That’s bad enough. But I don’t think I understood how much was a stake until I read the Torture Memos. Those memos claim the right to legally inflict hideous intentional pain — what I and most people would call torture — on enemy combatants. That’s right—on people whom this administration considers equivalent to Padilla. So the US government is not only asserting the right to Disappear people, but to torture them in secret as well.

It seems government lawyers have been having cold feet about the likelihood that the Supreme Court will endorse this argument. (Law clerks blabbing? Lawyers realizing how evil their arguments are? Cynics thinking the Justices will be influenced by the Iraq torture headlines?) And well they should, as it is despicable. It deserves to lose 9-0, although no one I know is bold enough to predict that will actually happen, myself included. Yet any vote in favor of the government’s arguments is a vote for authoritarian government at best, and a blow to our freedom greater than anything even all the other cases above together could manage.

Were Padilla to lose, it would blow a hole in the Constitution, one that would take a constitutional amendment to fix. I am confident the Supreme Court will not take us there, but if I’m wrong about that, it’s the start of a long, long fight.

Intelligence Value of Guantanamo Detainees "Repeatedly Exaggerated"

Now that the Supreme Court is getting ready to rule any day now on a case in which a key part of the US case is the incredible military value of the Guantánamo Detainees, what do we learn…what we suspected…U.S. Said to Overstate Value of Guantánamo Detainees:

… an examination by The New York Times has found that government and military officials have repeatedly exaggerated both the danger the detainees posed and the intelligence they have provided. …

The problems of collecting information about the detainees have also hampered their screening for possible release. As a result, some of the men are being held apparently as much for what officials do not know about them as for what they do.

Officials said they had cautiously vetted the 146 detainees who have been freed, including the 16 who had been transferred to the custody of their home governments. Even so, at least a handful of serious mistakes have already been made.

New accounts from officials in Afghanistan and the United States indicate that at least 5 of the 57 Afghan detainees released have returned to the battlefield as Taliban commanders or fighters. Some of the five have been involved in new attacks on Americans, officials in southern Afghanistan said, including a notorious Taliban commander, Mullah Shahzada, who was reportedly killed in a recent accident.

American and foreign officials have also grown increasingly concerned about the prospect that detainees who arrived at Guantánamo representing little threat to the United States may have since been radicalized by the conditions of their imprisonment and others held with them. …

Senior military officials now readily acknowledge that many members of the intelligence team initially sent to Guantánamo were poorly prepared to sort through the captives. During the first half of 2002, they said, almost none of the Army interrogators had any substantial background in terrorism, Al Qaeda or other relevant subjects.

One Army intelligence reservist had previously been managing a Dunkin’ Donuts. Many younger Army interrogators had never questioned a real prisoner before. As in Afghanistan, interrogators at Guantánamo asked the same basic questions again and again, many former detainees recalled. …

Oh, just read the whole thing.

Phil Carter Notes Probable Jurisdiction

Phil Carter points out that the Patriot Act usefully expands US criminal law jurisdiction to sweep in “crimes committed by or against any U.S. national on lands or facilities designated for use by the United States government”:

Sure enough, Sec. 804 of the USA PATRIOT Act … amends 18 U.S.C. 7, also known as the “special maritime and territorial jurisdiction” statute of federal criminal law, to include U.S. military bases and embassies outside of the U.S. Here’s the relevant text of 18 U.S.C. 7

Of course, this is of no great value to parties wishing to file civil law suits, and the odds that a US Attorney is going to start investigating Guantanamo seem pretty low. Prosecutions at Abu Ghrabi are firmly in the hands of the military justice system, and it’s too soon to tell whether the military honor reflex or the military cover-up reflex will dominate.

But, as noted on Intel Dump, this amendment has borne fruit in the prosecution of a civilian contractor in Iraq for an assault that lead to the death of a CIA detainee. Update: Washiington Post explains the background to the prosecution.

OLC's Aug. 1, 2002 Torture Memo ("the Bybee Memo")

The Washington Post has placed online the full text of an August 1, 2002 memo from the Justice Department’s Office of Legal Counsel (OLC) to White House Legal Counsel Alberto R. Gonzales.

A few words of context before substance. The OLC is sometimes called “the Attorney General’s Lawyer”. It’s an elite bureau in the Justice Dept. staffed by very very intelligent and highly credentialed people. Its primary function is to give opinions on matters of constitutionality regarding interdepartmental and inter-branch relations, and to opine on the constitutionality of pending legislation. By all accounts working at OLC is one of the most interesting jobs in government if you are interested in constitutional law or the working of government.

In August 2002, the head of the OLC was Jay Bybee, now a sitting judge on the 9th Circuit. His signature appears on page 46 of this memo.

White House Counsel Alberto Gonzales, who requested this memo, is not the head of the OLC. The White House Counsel is part of the Office of the President, and the Counsel is the President’s staff lawyer, just as the Attorney General is the President’s institutional lawyer; neither of these people however is the President’s personal lawyer.

OK. On to the substance.

The memo is about what limits on the use of force (“standards of permissible conduct”) for interrogations conducted “abroad” are found in the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment ( Torture Convention) “as implemented” by 18 USC §§ 2340-2340A (the Torture statute).

The memo concludes that the restrictions are very limited — that only acts inflicting and “specifically intended to inflict severe pain or suffering”, whether mental or physical, are prohibited. Allowed are severe mental pain not intended to have lasting effects (pity if they do…), and physical pain less than that which acompanies “serious physical injury such as death or organ failure” (p. 46). Having opined that some cruel, inhuman, or degrading acts are not forbidden, only those that are “extreme acts” (committed on purpose), the memo moves on to “examine defenses” that could be asserted to “negate any claims that certain interrogation methods violate the statute.”

• This is not a draft, but it’s not an action document either. It’s legal advice to the Counselor for the President. The action document was Gonzales’s memo to Bush.

• This OLC document is a legalistic, logic-chopping brief for the torturer. Its entire thrust is justifying maximal pain.

• Nowhere do the authors say “but this would be wrong”.

• Lots of the (lousy) criminal law legal reasoning in this memo is picked up in the Draft Walker Working Group memo

• This memo also has a full dose of the royalist vision of the Presidency that informs the Draft Walker memo. In the views of the author(s), there’s basically nothing Congress can do to constrain the President’s exercise of the war power. The Geneva Conventions are, by inevitable implications, not binding on the President, nor is any other international agreement if it impedes the war effort. I’m sure our allies will be just thrilled to hear that. And, although the memo nowhere treats this issue, presumably, also, the same applies in reverse, and our adversaries should feel unconstrained by any treaties against poison gas, torture, land mines, or anything else? Or is ignoring treaties a unique prerogative of the USA?

Synopsis and commentary:

Pages 2-13 are the same sort of unconvincing criminal law analysis that others have critiqued in the Walker Working Group memo

Admitting that the Torture Statute is designed to implement the Torture Convention, and that therefore the interpretation of the treaty should inform one’s interpretation of the statute, page 14 of the Bybee memo starts in on the Torture Convention. It finds in the Convention a distinction between the worst acts of torture and lesser acts of “cruel, inhuman or degrading treatment or punishment”. (P. 15) That’s fair enough.

Then things get weird. When the Senate ratified the Torture Convention in 1994 it stated “[t]hat the United States considers itself bound by the obligation under Article 16 to prevent ‘cruel, inhuman or degrading treatment or punishment,’ only insofar as the term ‘cruel, inhuman or degrading treatment or punishment’ means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.” 136 Cong. Rec. 17491 (Oct. 27, 1990).

It’s obvious (I hope) that the various horrors the memo would allow, such as hurting prisoners a great deal (but not quite to the point of ‘torture’), drugging them, scaring them, and so on, indeed very many things we would call “cruel, inhuman or degrading” would be the sort of thing that we would domestically prohibit as “cruel and unusual” punishment. But if that’s right, then the memo is deeply, horribly, wrong.

So, here’s how they try to reason out of that hole: It’s not the Senate’s view that really counts. No, it’s the King’s President’s view of the treaty’s meaning that has the “greatest weight” (p. 16). To get to this conclusion they cite a bunch of court decisions that say the executive’s view is entitled to “great weight” (which it is)…but the difference between “great” and “greatest” is, well, pretty great.

Having decided that it’s the executive branch’s views that matter, the memo then parses the Reagan administration’s submissions to the Senate relating to the proposed ratification of the the Convention. One problem with relying on what the Reagan administration said is that the Senate didn’t ratify the Convention until the first Bush administration. Arguably it did so in reliance on the Bush administration’s submissions which, as the memo delicately puts it used “less vigorous rhetoric” (p. 18). In fact, the Bush administration used language much like that in the Torture Statute; but the memo chooses to rely on the Reagan language instead (p. 19) to find that only the most extreme conduct would be prohibited.

As for what the Senate may have said in the ratification debates, the memo’s attitude is — Who Cares? “[A]part from statements by Executive Branch officials, the rest of a ratification debate is of little weight in interpreting a treaty”. For a statement of the contrary, and widely accepted, view that requires a court to consider legislative sources, see Restatement (3rd) of the Foreign Relations Law of the United States § 325 comment 5.

Despite the increasingly heard right-wing complaint that the Supreme Court should not rely on the decisions of foreign courts, the Memo then turns to what other nations have said constitutes torture. The most important case on which the Memo relies is “Ireland v. United Kingdom”:, a 1978 decision of the European Court of Human Rights which held that “interrogation in depth” involving “five techniques” was not “torture” but merely “inhuman and degrading treatment”. The five techniques were:

a) wall-standing: forcing the detainees to remain for periods of some hours in a “stress position”, described by those who underwent it as being “spreadeagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers”;

b) hooding: putting a black or navy coloured bag over the detainees’ heads and, at least initially, keeping it there all the time except during interrogation;

c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise;

d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;

e) deprivation of food and drink.. subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations.

If one believed that US law banned only “torture” and not mere “inhumane and degrading treatment” then I think the Memo would be right to rely on this precedent. The key issue is whether that initial distinction is right.

(The memo also noted, at pp. 30-31, the Israeli Supreme Court’s decision in “Public Committee Against Torture in Israel v. Israel”:, 38 LL.M. 1471 (1999), which discussed even more aggressive measures and found them to be “inhuman and degrading”. The Bybee Memo argues somewhat unpersuasively that this means the Court did not believe them to be torture, a reading it buttressed by noting that Court accepted there might be a necessity defense in some cases. I’m no expert here, but I’m dubious: the Israeli Supreme Court was ruling in a charged and political case, and was very mindful of the potential effect on international public opinion. It had every incentive to avoid the word ‘torture’; as for the necessity defense, the Israeli rule, like the US rule, contemplates permitting some things under domestic law that violate international law. “Necessity” in Israel is seen as touching national survival.)

Page 31 returns us to Wonderland. Here the memo reverses field and says, basically, if we were wrong about any of this stuff and the statute did ban an interrogation technique then the statute would be unconstitutional as an impermissible encroachment on the President’s Commander-in-Chief power to wage a military campaign, especially in circumstances “unprecedented in recent American history”. (Note the qualifier: it is NOT the first time we’ve had an attack on our shores or even on core government institutions. After all, the British burned the White House in 1814.) The next couple pages recite what a great threat Al Qaeda is, and the great national effort to fight it, concluding that “the capture and interrogation of such individuals is clearly imperative to our national security and defense” as they could tell us information that would prevent future attacks.

[In what now must seem highly ironic this section of the memo concludes by citing Padilla’s arrest as an example of the valuable intelligence that could be gathered to prevent future attacks on the US. (In fact, by all accounts other than the Justice Department’s, Padilla was at worst a nasty, ill-intentioned incompetent or perhaps just a big talker; his lawyer argues he was a guy who soured on Al Qaeda and made up stuff so they’d let him go back to the US).]

The memo then argues (pp. 33- ) that any criminal statute such as the Torture statute, which might be read to limit the President’s authority to wage war must be read to avoid this constitutional problem. It’s certainly right that reading statutes to avoid constitutional problems is a good interpretive strategy. The problem here, as I’ve suggested previously, is that there isn’t actually much of a constitutional problem here: a President negotiated the statute, the Senate ratified it, both houses of Congress passed implementing legislation that a different President signed. Treaties are the law of the land. Once implemented in legislation (few treaties are “self-executing,” so legislation is almost always needed), the President has a duty to take care that they be faithfully executed unless Congress relieves him of that obligation. That didn’t happen here.

The memo argues (p. 35) that Congress “may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.” Either this is just bunk, or the Geneva conventions, the prohibitions on the use of poison gas, all the rest of the web of international agreements to which the US is a party, are so much tissue paper. We’re no longer committed to the rule of law, but the rule of force. (In fact what the OLC seemed to argue for in other memos was a double standard in which international law still applied to everyone else.)

In any case, there’s an enormous difference between unfettered discretion to move troops around on the battlefield and unfettered discretion to order war crimes. One has to do with determining what tools the President has available to conduct the war, the other with the conduct of it. Congress has a great say in the first, even if it has no say in the second.

[Update (6/14/04 12:10): In response to a question, I guess I should clarify this: Congress has discretion to choose the tools available to the President. It can rule some practices unlawful, either under its Art I, sec. 8, para. 14 authority “To make Rules for the Government and Regulation” of the armed forces or under the Art. VI Treaty power. I would argue it can order all troops leave a given country, if only under the power of the purse. But it cannot direct a brigade to go here or there in the field of battle.]

Page 36 pulls back a bit in the direction of reality. Perhaps realizing that its argument is a little daft, the memo considers the possibility that “[i]t could be argued that Congress enacted 18 U.S.C. § 2340A with the full knowledge and consideration of the President’s Commander-in-Chief power, and the Congress intended to restrict his discretion in the interrogation of enemy combatants.” But the visit is merely temporary, for the memo quickly asserts that even if this were the case, “the Department of Justice could not could not [sic] enforce Section 2340A against federal officials acting pursuant to the President’s constitutional authority to wage a military campaign”.

Note that the argument here is not that the DOJ should use its prosecutorial discretion, but rather that it would have a legal duty to abstain from prosecution. Why couldn’t the DOJ prosecute what appears to be a crime? Because the President’s power to protect the nation’s security is paramount (p. 36), and plenary, especially “in grave and unforseen emergencies” (p. 37).

Now, there really is great substance to the argument that the President’s powers are at its apex if he has to repel a sudden attack on the US. I think all constitutional scholars would agree with that. But the scenario to which this applies is the invading army, the advancing missile or aircraft, not the detainee captured half way across the world.

By page 39 of the memo, however, we’re back to the Vesting Clauses of the Constitution, and the argument the President is a law to himself regarding anything touching military matters. “Any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President.” And since intelligence gathering is so critical to modern warfare against terrorists, Congress certainly can’t interfere with that.

In short, it’s the same Nixonian argument all over: the DOJ can’t prosecute anyone who, in anything arguably connected to the war effort, does what the President tells them to.

But that’s not enough. The Memo then turns to other defenses besides Presidential authorization that might be raised by a person accused of torture. [I take it that this section of the memo applies to both accusations of “torture” which the authors admit is torture and accusations of “torture” that the memo writers would characterize as mere “cruel, inhuman, or degrading acts” that are not actual torture, but it’s a little vague on this, and it’s conceivable the authors mean this section only to apply to the latter. The memo speaks of force, even deadly force, which suggests it includes what they call torture, but elsewhere it notes that the force must be “proportional” to the need; given that the “need” is national security, and the memo treats this as the summum bonum, I read the memo to intend the defenses potentially to apply to all uses of force including the most severe torture.]

The first is the “necessity” defense, the second is a notion of “self-defense”. I will leave it to others to skewer these. But I do feel a need to point out just how far down the slippery slope this memo goes by page 45. It argues that otherwise criminal individual acts can be defended by invoking the nations’s not the individual’s right to self-defense (and even in a footnote argues that there’s a relevant analogy to the right to national self-defense under international law. And this applies to suspected prospective attackers and their associates as well as soldiers in the field. How this differs from saying that if the US even suspects anyone of wanting to harm it, it can do anything it wants to them is not clear on first reading.

Ultimately, the best legal commentary on this memo may belong to Professor Jay Leno:

According to the “New York Times”, last year White House lawyers concluded that President Bush could legally order interrogators to torture and even kill people in the interest of national security - so if that’s legal, what the hell are we charging Saddam Hussein with?

Remember: the lawyers who wrote this memo were guilty of a lack of moral sense, and extreme tunnel vision fueled by a national panic. The people who asked them to write it, who read it, and especially any who may have acted on it — they’re people who really have the most to answer for.

For Those Who Came In Late

The New York Times Magazine has a nice feature story on some of the military lawyers representing Guantanamo detainees. Commander Swift Objects won’t tell people who have been following the story closely much that’s new, but it’s well-told, and has a very sympathetic profile of Lt. Cmdr. Charles Swift, one of the lawyers, who is among the group that has sued Rumsfeld claiming the entire system of detainee trials is unconstitutional.

Probably the only things that were new to me was some of the details of the machinations inside the Pentagon regarding who could serve as defense counsel, and what they could do, and the fact that it was Alberto Gonzales who authorized them to file what turned out to be a very powerful amicus brief in the al Odah case, which the Supreme court will be deciding some time in the next days or weeks.

One thing the article doesn’t mention, is that the defense lawyers at Guantanamo are in the same chain of command as the prosecution, instead of the normal situation under which they would be separate. The absence of insulation increases the opportunity for intimidation, and it’s especially to Switf et al.’s credit that they are being as tough as they are.

Some 'Hotel'

The Washington Post describes tensions between the Red Cross and the US military concerning the harsh conditions at Guantanamo: In Guantanamo, Detainee Fears Recorded

Yoo, Unrepentant

Prof. John Yoo published an op-ed in the LA Times today entitled With ‘All Necessary and Appropriate Force’. As Prof. Yoo worked in the Justice Dept. During 2001-03, and by all accounts had a major hand in the drafting of Justice Dept. memos relating to the rules applying to the treatment of al Qaeda and other persons labeled by the administration as non-persons enemy combatants, his comments deserve careful attention.

Official Washington has been struck by a paroxysm of leaking. It involves classified memos analyzing how the Geneva Convention, the 1994 Torture Convention and a federal law banning torture apply to captured Al Qaeda and Taliban fighters. Critics suggest that the Bush administration sought to undermine or evade these laws. Sen. Dianne Feinstein (D-Calif.) claimed this week that the analyses appeared “to be an effort to redefine torture and narrow prohibitions against it.”

Yes, that’s more or less what it looked like all right. Or, as one pithy letter-writer to the Washington Post put it, “How is it that the Defense Department, the Justice Department, and the White House counsel’s office were all writing lengthy and detailed memos on the laws against torture, how to get around the laws against torture, and the president’s alleged authority to ‘set aside’ the laws against torture, and yet nobody had any intention of torturing anybody?”

This is mistaken. As a matter of policy, our nation has established a standard of treatment for captured terrorists. In February 2002, President Bush declared that the detainees held at Guantanamo Bay, Cuba, would be treated “humanely and, to the extent appropriate and consistent with military necessity, consistent with the principles” of the Geneva Convention. Detainees receive shelter, food, clothing, healthcare and the right to worship.

Ok, we’re already at the first disingenuous loophole: “a standard of treatment” tells us nothing about what sort of standard. “Kill them all” is a standard. As for the promise of humane treatment, what is that worth when it’s qualified by “to the extent appropriate and consistent with military necessity”?

This policy is more generous than required. The Geneva Convention does not apply to the war on terrorism.

Actually, this statement is dangerously false. The Geneva Convention does not apply to terrorists on our shores–but the Bill of Rights does. As regards foreign nationals in foreign countries where we are conducting military operations, the Geneva Conventions clearly contemplate a dichotomous world: there are foreign uniformed troops, who get POW status if caught, and there are foreign civilians, who do not, but instead benefit from certain limited protections for civilians. Irregulars who take up arms can be treated as criminals, can be tried, can be shot if there is a death penalty. POWs can’t be tried, and are entitled to a set standard of treatment that in many countries exceeds what civilian prisoners would get. Furthermore the Geneva convention system provides for a system by which military captors must hold a hearing to determine the status of a captured combatant before determining that they are not entitled to POW status. We’ve failed to do this in Afghanistan and Iraq, although we did manage somehow to do it in the first Iraq war.

It applies only to conflicts between its signatory nations. Al Qaeda is not a nation; it has not signed the convention; it shows no desire to obey the rules. Its very purpose — inflicting civilian casualties through surprise attack — violates the core principle of laws of war to spare innocent civilians and limit fighting to armed forces. Although the convention applies to the Afghanistan conflict, the Taliban militia lost its right to prisoner-of-war status because it did not wear uniforms, did not operate under responsible commanders and systematically violated the laws of war.

By joining Al Qaeda or the Taliban, much less by being accused of joining by Mr. Yoo and others, persons forfeit neither their citizenship nor their humanity. Al Qaeda is not a country. It cannot sign the Geneva conventions. But its fighters often are citizens of signatory countries, or are fighting on behalf of signatory countries. The idea that the US can unilaterally say that accused Al Qaeda and Taliban members are, by virtue of the accusation, removed from the Geneva conventions is dangerous nonsense, and an ugly precedent that will surely come back to haunt us. To the extent that particular fighters violated their rights to POW status by, for example, not wearing uniforms, our obligation under those same conventions is to treat them as POWs until we give them a hearing.

It is true that the definition of torture in the memos is narrow, but that follows the choice of Congress. When the Senate approved the international Torture Convention, it defined torture as an act “specifically intended to inflict severe physical or mental pain or suffering.” It defined mental pain or suffering as “prolonged mental harm” caused by threats of physical harm or death to a detainee or a third person, the administration of mind-altering drugs or other procedures “calculated to disrupt profoundly the senses or the personality.” Congress adopted that narrow definition in the 1994 law against torture committed abroad, but it refused to implement another prohibition in the convention — against “cruel, inhuman or degrading treatment or punishment” — because it was thought to be vague and undefined.

Physical and mental abuse is clearly illegal. But would limiting a captured terrorist to six hours’ sleep, isolating him, interrogating him for several hours or requiring him to do physical labor constitute “severe physical or mental pain or suffering”? Federal law commands that Al Qaeda and Taliban operatives not be tortured, and the president has ordered that they be treated humanely, but the U.S. is not required to treat captured terrorists as if they were guests at a hotel or suspects held at an American police station.

Another disingenuous move. Neither six hours sleep nor “several hours” of interrogation are illegal acts. But that’s not what we’re talking about. We’re talking about scaring people with dogs, about contests to see how many detainees could be so terrified they peed on themselves. We’re talking about 16 hours of continuous interrogation, and suicide attempts. We’re talking about telling people they were about to be killed. We’re talking about simulating telephone conversations in which detainees were told their families were being held on the other end of the line and would be harmed if the detainee didn’t talk. We’re talking about not jjust threatening but abusing kids to make parents talk. We’re talking about raping women and children of both sexes. We’re talking about atrocities.

Treating “captured terrorists as if they were guests at a hotel”? The word “offensive” is really too mild for this sort of argumentation.

Finally, critics allege that the administration wants to evade these laws by relying on the president’s commander-in-chief power. But the 1994 statute isn’t being evaded, because the president’s policy is to treat the detainees humanely.

WHOOPS! What happened to “to the extent appropriate and consistent with military necessity”?

Besides, that statute does not explicitly regulate the president or the military. General criminal laws are usually not interpreted to apply to either, because otherwise they could interfere with the president’s constitutional responsibility to manage wartime operations. If laws against murder or property destruction applied to the military in wartime, for instance, it could not engage in the violence that is a necessary part of war.

Non-sequitur. Straw man. No one has suggested that the statute prevents military operations. Just military torture. And since the statute is part of our observance of the Geneva Conventions, it’s hardly odd to read it to apply to the military - since that’s to whom the Geneva Conventions apply.

But suppose Congress did specifically intend to restrict the president’s authority to interrogate captured terrorists.

Ok, back to reality.

As commander in chief, the president still bears the responsibility to wage war. To this day, presidents from both political parties have refused to acknowledge the legality of the War Powers Resolution, which requires congressional approval for hostilities of more than 60 days. (President Clinton ignored it during Kosovo.) And in the war on terrorism, Congress has authorized the president to use “all necessary and appropriate force.”

Non-sequitur again. No President has ever previously suggested that the Torture Statute was either unconstitutional or didn’t apply in wartime.

By exploring the boundaries of what is lawful, the administration’s analyses identified how a decision maker could act in an extraordinary situation. For example, suppose that the United States captures a high-level Al Qaeda leader who knows the location of a nuclear weapon in an American city. Congress should not prevent the president from taking necessary measures to elicit its location, just as it should not prohibit him from making other strategic or tactical choices in war. In hearings this week, Sen. Charles E. Schumer (D-N.Y.) recognized that “very few people in this room or in America … would say that torture should never, ever be used, particularly if thousands of lives are at stake.”

This is so wrong on two levels. First off, not one of the memos at issue is about the rare hypothetical ‘terrorist known to have an a-bomb in NY’ (TABNY) scenario. Rather, they are about the care and torture of all so-called ‘enemy combatants’. Not a single one of these people has ever been alleged to have WMDs in the US. It may be that many people got tortured for denying knowledge of the existence of WMDs in Iraq, but the evidence points rather strongly in the direction that these weapons never took the trouble to exist.

Prof. Yoo’s resolution of the TABNY scenario is wrong on its own terms too, because it legitimates a torture regime that, even judged by its own starkly utilitarian morality, will inevitably err on the side of excessive torture . Explaining why that is is a little complicated, so I’m going to defer that to another posting that I’ll put up no later than Monday.

Ultimately, the administration’s policy is consistent with the law.

“Consistent with the law” because (although Prof. Yoo has soft-pedaled it in this op-ed) the memo says that the Constitution allows the President to do what he wants if he justifies it by miliary necessity.

If the American people disagree with that policy, they have options: Congress can change the law, or the electorate can change the administration.

True. But you left one out: the courts can find that your interpretation sounds in Nuremburg.

Major Mori Will Be Busy

Convenient timing? The Pentagon announced today that Australian Detainee David Hicks is being formally charged with three offenses: conspiracy to commit war crimes; attempted murder by an unprivileged belligerent and aiding the enemy.

Neither a trial date nor the members of the military commission who would hear the charges have been chosen. Furthermore, Mr. Hicks’s very able military counsel, Major Mori, has challenged the entire procedure. Conceivably the court hearing those challenges might stay the proceeding pending its decision.

The trial will not be open to the public, but — get this! — two, count them two, members of his family will graciously be allowed to attend the Kangaroo court! Wow!

And let’s not forget the Australian claims of torture.

Torture: Wrong Yesterday, Wrong Today, Wrong Tomorrow

In nothing new under the sun, the Curmudgeonly Clerk notes accurately that many prior administrations have done quite horrible things in wartime. He notes the firebombing of Dresden and Tokyo, and the Japanese internments as examples of FDR’s wartime moral failings. To which one might of course add the general conduct of the anti-insurgency campaigns in the Philippines after the Spanish-American War, the bombing of Cambodia, most of the century-long campaign against Native American tribes, just to name a few.

From this basis, he concludes I was wrong to approvingly quote Kevin Drum saying that “Under this administration, we seem to have lost the simple level of moral clarity that allowed our predecessors to tell right from wrong.”

As Mr. Clerk puts it,

My purpose is neither to justify the conduct of the present administration nor condemn the current president’s predecessors. As I indicated during my last stint as a guest contributor at Crescat Sententia, I find wartime torture to be deeply troubling. I do not wish to minimize the moral significance of the events at Abu Ghraib or the decisions that purportedly led to those abuses. But Drum and Froomkin are incredibly mistaken in maintaining that the Bush administration’s alleged wartime moral failings are unprecedented or unique.

That excesses and moral failings in wartime are not new, no reasonable person could dispute. That the US has been guilty of some in its history is not seriously in doubt, despite the ‘my country right or wrong’ crew. But there are important differences about this case which I think make it especially bad.

The first is that we are in a post-Nuremberg age. We profess and affirm a renewed and specific commitment to the rule of law even in wartime, one that labels some (but not all) excesses as war crimes, anathema. Torture falls squarely into that zone.

The second is that the norm against torture is especially well-established, and long-established, in both our domestic (cf. the Eighth Amendment) and international legal traditions, and in world-wide morality. (For a historic example, consider the post-Civil War case of Andersonville, where the mistreatment of prisoners was strongly condemned.) The prohibition is not a new post-Nuremberg idea, even if the clear deliniation of personal responsibility for adhering to the prohibitory norm may be. The attempt to justify cruel and unusual acts as legal thus is particularly hard to accept and particularly deserving of condemnation.

In summary, I am not arguing that inter-temporal relativism excuses past evils. Rather, I am arguing that,

1. The fact that there is a history of many evils in wartime should not blunt our condemnation of other evils, such as systematic torture of prisoners, that even those in the past might have blanched at, and

2. We can, we should, we do, hold ourselves and our government to a higher standard than the lowest common denominator of history. Indeed, it is precisely because we have the benefit of that history that we know we should do better.

I admit that the above is somewhat different from Kevin Drum’s lines that I quoted, so I’m grateful to Mr. Clerk for making me be clearer.

Apologia Pro Tormento: Analyzing the First 56 Pages of the Walker Working Group Report (aka the Torture Memo)

I have read a redacted copy of the first 56 pages of the Torture Memo (alternate source). The memo — or at least the approximately half of it we have — sets out a view as to how to make legal justifications for the torture of detainees unilaterally labeled by the government as “unlawful combatants”, including (but not limited to?) al Qaida and Taliban detainees in Guantanamo.

Here are my initial comments on some of the main points, especially those regarding Presidential powers and international law. I’ve concentrated on those parts because those are the relevant issues I think I know the most about; in contrast, I say little here about the direct criminal law issues. I wrote this in a hurry, so please treat these as tentative remarks. I look forward to discussion with other readers, and will post amendments and corrections when they are brought to my attention.

1. The memo begins by noting, accurately, that our international obligations include a commitment to refrain from actions that would be ‘cruel and unusual punishment’ under the Constitution. This acknowledgment does not, however, infuse much of what follows.

2. The memo notes that Justice Department opined in a separate memo dated January 22, 2002, Re: Application of Treaties and Laws to al-Queda and Taliban Detainees, that customary international law “cannot bind the Executive Branch under the Constitution because it is not federal law” and in particular clear executive decisions would be “controlling” law that would trump customary international law. [Note: The Jan. 22 memo cited here seems related to the Gonzales memo of Jan 25, but to be a separate document — is a copy available anywhere?]

In my opinion, the first part of this statement about customary international law is directly contrary to the Restatement (3rd) of Foreign Relations Law of the United States § 111(1) — although I suppose a reasonable person might conceivably disagree. The second part is simply weasel wording: Compliance with customary law is an international obligation of the US, but not always a domestic obligation. It’s agreed that Congress can constitutionally legislate in a way that would violate our international obligations, although as a matter of construction courts presume it has not done so unless the Congressional intent to violate international law is explicit. It’s not generally agreed the President can do this unilaterally, especially since the Supreme Court declared that “international law is part of our law” in The Paquete Habana (1900).

3. As previously noted by the WSJ, the memo argues (accurately, in my opinion) that the Torture statute, 18 USC § 2340, applies only to conduct outside the US, then it argues (plausibly) that Guantanamo is inside the US for jurisdictional purposes, hence not within the zone covered by § 2340. As I noted previously, this analysis conflicts with the position the US government took regarding Guantanamo before the Supreme Court. (But I actually think the memo has it right, and the US litigation posture wrong.) The memo argues that the two positions can be reconciled, which again is technically correct—they can be read that way—but I think it would be wrong to read them that way, and it’s certainly not compelled.

4. Then there’s a long discussion of what is or isn’t torture, with much fine parsing of the torturer’s intentions, all of which seems designed to bend over backwards to suggest that hurting people a whole lot to the point of damage is fine if you do it with the right spirit. I cannot bear to summarize all this; it is too painful. I have never seen a better demonstration of the first part of the saying that “the letter killeth, but the spirit giveth life,” an ironic property given the identity of the lead author.

5. The discussion of Presidential powers begins (page 20) with the observation that in the exercise of the commander-in-chief function, and in particular in the conduct of operations against hostile forces, the President enjoys “complete discretion”. That the President’s powers are at their greatest in these circumstances cannot be disputed. But while the discretion is indeed very great, I do not see how it could possibly be read to include the authority to commit war crimes, even pre-Nuremburg. And today it clearly cannot include that authority, at least without explicit Congressional authorization. Thus, the entire discussion of Presidential power is based on a premise so false that any student who has taken introductory International Law should be able to recognize its error. And as any logician will tell you, when you begin with an erroneous premise, you are in trouble.

6. A similar error infuses the paper’s discussion of the application of the Torture statute, 18 USC § 2340, to actions on the field of battle or activities ancillary to battle. On p. 21 the paper states that the President’s military authority to run a campaign means that the Torture statute “must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority” (i.e. all military interrogations in wartime) because — I am not making this up, they are — “Congress lacks the authority to under Article I to set the terms and conditions under which the President may exercise his authority as Commander-in-Chief to control the conduct of operations during a war.” In short, according to this memo, on the field of battle the President’s authority is absolute (recall that the English commander-in-chief was an official who reported to George III). “Congress may no more regulate the President’s authority … to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.”

This is clearly wrong on the Constitutional level, and quite probably a bad analogy. It is clearly wrong to suggest that Congress exceeds its authority when it implements an international treaty obligation against torture, even if this has the result of reducing otherwise extant Presidential power. This is because under Article VI of the Constitution, international treaties “shall be the supreme Law of the Land”. We’ve known that this means what it says since at least Missouri v. Holland, if not long long before.

It is generally agreed — and I certainly believe — that Congress has no role in dictating battlefield troop movements, or the choice of field commanders (as opposed to its constitutional role in approving promotions). Conversely, under the Constitution, if not always in real life, Congress does get to choose who we attack. And Congress does have a say in the methods by which we wage war, both via the spending power and via its constitutionally prescribed role in setting the rules of military justice. If Congress passes a law that says it’s a criminal act for a soldier to thumb his nose at a prisoner, or carry a type of weapon, that’s a valid law, and the Commander in Chief authority cannot trump it. To argue otherwise is to say that were Congress to decide that we should not make a neutron bomb, as it did, the President could nonetheless decide to make one, and use it on the battlefield. Similarly, were Congress to pass a law that said nuclear weapons could only be used if certain conditions had been met, under the Constitution the President would not have the authority to ignore that limitation.

But that’s all beside the point. Even if we were to accept that the President has unlimited authority over the battlefield, it in no way follows that this authority extends to Guantanamo, which is far removed from it. The memo treats this as given. It is anything but given.

Page 23 really goes off the rails, making an argument popular with the Federalist Society, but not taken seriously by mainstream academics, for unlimited, uncontainable, Presidential power. The so-called “unitary executive” argument is set out most clearly in a Harvard Law Review article, Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1155 (1992). My explanation as to why this article is profoundly wrong and dangerous can be found at A. Michael Froomkin, The Imperial Presidency’s New Vestments, 88 Nw. L. Rev. 1346 (1994), which in turn sparked separate and not entirely consistent answers from each of the two authors of the Structural Constitution article. My rebuttal article Still Naked After All These Words, 88 Nw. L. Rev. 1420 (1994) is also online.

On pages 22-23 the Walker Working Group Report sets out a view of an unlimited Presidential power to do anything he wants with “enemy combatants”. The bill of rights is nowhere mentioned. There is no principle suggested which limits this purported authority to non-citizens, or to the battlefield. Under this reasoning, it would be perfectly proper to grab any one of us and torture us if the President determined that the war effort required it. I cannot exaggerate how pernicious this argument is, and how incompatible it is with a free society. The Constitution does not make the President a King. This memo does.

7. The draft returns to the theme of cruel and unusual punishment around page 35, grudgingly noting that although Gitmo detainees have no constitutional rights since they are foreigners, the US nonetheless can’t subject to them to acts that would be ‘cruel and unusual’ due to our obligations under the Convention Against Torture. Having said that, the memo notes that what is cruel and unusual is not a hard and fast rule (I’d add “in all cases”, since I think some things are per se cruel and unusual), and what is forbidden may depend on the circumstances. Having constructed this loophole — which to the extent it exists is not designed to allow coercive questioning — the memo then tries to squeeze through it, noting in its Eight Amendment analysis that the “government interest here is of the highest magnitude” (p. 38) and hence things that might be excessive force in other circumstances might not be here. But it doesn’t come to any specific conclusions about what’s in and what’s out.

8. There’s an extensive discussion of various criminal and civil statutes that might land a torturer in hot water, but I’m going to skip over those. Similarly, I’m not going to discuss the UCMJ provisions cited on pages 47-51, except to note that the UCMJ is a congressional enactment, pursuant to its constitutional powers. Indeed, as the memo notes, “even in war limits to the use of force exist” and these are enforced by the military justice system.

The memo is ambiguous as to whether it argues that the UCMJ is an infringement of the President’s supposed plenary power of the military. Failing to make this argument would expose the flaws in its own reasoning that the President is subject to no legal constraint in his prosecution of a war and in any ancillary activities relating to it. On the other hand, arguing the UCMJ is invalid is obviously nuts. Here’s what the memo says on the subject of the President unilaterally overruling the UCMJ (p. 53):

“Legal doctrines could render specific conduct, otherwise criminal not unlawful.

See discussion of Commander-in-Chief Authority, supra.

Oddly, there’s no mention of the Constitutionally proper means by which a President could in fact overrule the UCMJ — by exercising the Pardon power. (Perhaps it’s not so odd — unitary executive partisans don’t want to admit that the Pardon power is how the President balances Congress’s lawmaking power; they’d rather have the President in effect legislate.)

9. The final section of the 56 pages in the version posted online (there’s obviously lots of the memo left to be found), discusses the very reasonable rules in fact used heretofore by the US armed forces. Unlike the authors of this memo, the folks on the sharp end eschew physical torture, preferring interrogation techniques that sound a lot like what the cops do down at the station.

10. This memo is labeled “draft”. Even so, if the second half is like the first, then everyone who wrote or signed it strikes me as morally unfit to serve the United States.

If anyone in the higher levels of government acted in reliance on this advice, those persons should be impeached. If they authorized torture, it may be that they have committed, and should be tried for, war crimes. And, as we learned at Nuremberg, “I was just following orders” is NOT (and should not be) a defense.

[Note: I have corrected the paragraph numbering and a number of typos. 6/9/04 10am]

Basic Evil

While we lawyers get all het up about how people with a JD and a basic knowledge of the Constitution could sign a torturer’s charter, and whether this is a banal evil or virulent evil, or both, Kevin Drum has his eye on the basics:

But put aside the technical analysis and ask yourself: Why has torture been such a hot topic since 9/11? The United States has fought many wars over the past half century, and in each of them our causes were just as important as today’s, information from prisoners would have been just as helpful, and we were every bit as determined to win as we are now. But we still didn’t authorize torture of prisoners. FDR, Truman, Eisenhower, LBJ, Reagan — all of them knew it wasn’t right, and the rest of us knew it as well.

So what’s different this time? Only one thing: the name of the man in the White House. Under this administration, we seem to have lost the simple level of moral clarity that allowed our predecessors to tell right from wrong. It’s time to reclaim it.

And just imagine what those guys will do if they don’t have to worry about re-election.

Another How-To-Torture Memo

INTEL DUMP summarizes a Wall Street Journal account of a 100+ page memo that purports to explain how torture of detainees at Guantanamo could be legally justified.

The core of the argument is little more than the old Nixonian one that the President is above the law, so that he can authorize actions that would otherwise be illegal. It’s dressed up with some sophistication, but that’s about what it amounts to.

Phil says all the right things, so I won’t repeat them. But there is one aspect that he missed. According to the WSJ:

The lawyers concluded that the Torture Statute applied to Afghanistan but not Guantanamo, because the latter lies within the “special maritime and territorial jurisdiction of the United States, and accordingly is within the United States” when applying a law that regulates only government conduct abroad.

As summarized by the WSJ, the crux of the government’s position in this memo is that the executive has full unreviewable power in Guantanamo, not subject to check by the courts (at least absent some congressional action?). That this might be legally possible does not make it legally or morally correct.

Thus, it appears that the memo somewhat undermines the argument that the government made before the Supreme Court, where it argued that Gitmo was outside the jurisdiction of the courts because, being subject to residual Cuban sovereignty albeit US control, it was not part of the US for jurisdictional purposes. It’s not impossible to have different conceptions of ‘domestic’ jurisdiction for the reach of a statute and judicial review — but it’s uncomfortable and IMHO presumptively wrong.

This memo may also strengthen the case, set out by Eric Muller, that Deputy Solicitor General Paul D. Clement knew or (more likely) should have known that he was making a false statement when he said “[i]t’s … the judgment of those involved in this process [of interrogating POW’s and enemy combatants] that the last thing you want to do is torture somebody or try to do something along those lines.”

Someone — Congress? — really needs to get to the bottom of all this.

Australians Want to Disclose Abuse in Guantanamo

JURIST reports that Australia asks US to lift gag on terror suspect’s lawyers:

Following claims that two Australian nationals were abused while detained at Guantanamo Bay, the Australian government has asked the US to lift a confidentiality agreement signed by lawyers for David Hicks that bars the attorneys from revealing details of the abuse at Guantanamo Bay. Australia has also asked for a psychological assessment of a second detainee, Mamdouh Habib, whom a former cellmate said has become mentally unbalanced after guards falsely told him that his wife and children have died.

It just gets worse.

Misleading the Supreme Court

Eric Muller has further evidence that the Solictor General’s office’s misleading suggestion to the Supreme Court that torture (and its ilk) could never happen in the hands of our kindly and sensitive executive was NOT an off-the-cuff error in the heat of oral argument, nor a statement born of excusable ignorance (left hand, meet right hand), but rather part of a considered strategy. Whether that’s a considered strategy of deception, or a considered strategy of something else, remains to be seen.

When the rot reaches the SG’s office, that’s a pretty high water mark for rot. As Eric says, “Very, very troubling.”

Congressman Conyers Wants to Know Why Justice Misled Supreme Court

Eric Muller is all over this story — go read Ranking House Judiciary Democrat Asks for Investigation of DOJ

Weird Gitmo Abuse Claims Seem More Credible Now (Alas!)

Back in a more innocent age — that would be about two months ago — I wrote a post (UK’s Released Detainees Allege Torture) quoting but doubting claims of bizzare forms of abuse reported by recently releasted Gitmo detainees. I said then:

I do not believe the US would starve detainees or feed them spoiled food. Would it? And the stuff the Mirror repeats about the use of prostitutes to shock sensitive Muslims with naked bodies and menstral blood sounds just too weird — more like the propaganda of a person who has been held illegally in hard conditions for two years and wants his revenge.

My conclusion then was that,

Outside independent review — ideally judicial review — is essential either to rebut these claims convincingly or to root out and punish those responsbile if the uglier charges are at all true.

Have to say that those charges seem less impossible today. And I’m still not exactly clear on who’s going to be doing that independent review…

Torture Not A Policy, Just a Pattern. Right.

The Observer reports that US guards ‘filmed beatings’ at terror camp:

Dozens of videotapes of American guards allegedly engaged in brutal attacks on Guantanamo Bay detainees have been stored and catalogued at the camp, an investigation by The Observer has revealed.

Later in the article the Observer says:

It is the case of [Tarek] Dergoul [the fifth British prisoner freed last March], however, that is likely to be the most damaging. The 26-year-old, from Mile End in east London, spent 22 months at Guantanamo Bay from May 2002. Today he tells The Observer of repeated assaults by Camp Delta’s punishment squad, known as the Extreme Reaction Force or ERF.

Their attacks, he says, would be prompted by minor disciplinary infractions, such as refusing to agree to the third cell search in a day - which he describes as an act of deliberate provocation.

Dergoul tells of one assault by a five-man ERF in shocking terms: ‘They pepper-sprayed me in the face, and I started vomiting. They pinned me down and attacked me, poking their fingers in my eyes, and forced my head into the toilet pan and flushed.

‘They tied me up like a beast and then they were kneeling on me, kicking and punching. Finally they dragged me out of the cell in chains, into the rec[reation] yard, and shaved my beard, my hair, my eyebrows.’

After their release last March, Shafiq Rasul, Asif Iqbal and Ruhal Ahmed, the so-called Tipton Three from Staffordshire, told of similar ERF attacks.

Rasul said they led to a new verb being coined by detainees: ‘to be ERFed’. That, he said, meant being slammed against a floor by a soldier wielding a riot shield, pinned to the ground and beaten up by five armed men.

However, it is Dergoul who now reveals that every time the ERFs were deployed, a sixth team member recorded on digital video everything that happened.

Lieutenant Colonel Leon Sumpter, the Guantanamo Joint Task Force spokesman, confirmed this last night, saying all ERF actions were filmed so they could be ‘reviewed’ by senior officers. All the tapes are kept in an archive there, he said

This might be a good time to re-read this important post, Did the Justice Department Lie to the Supreme Court? by Eric Muller, especially if you haven’t see the recent updates.

Heroes

Every war creates its particular heroes. Here’s an article about some heroes from the War on Terror™.

Capt. Yee Wins on Appeal

The case of Capt. Yee came to an official end this week when the remaining (minor) charges against him got reversed on appeal.

Convictions Dropped for Muslim Chaplain at Guantánamo Bay: An Army general on Wednesday dismissed the convictions in the case of a Muslim chaplain who was initially suspected of espionage at the Guantánamo Bay prison for terror suspects but was found guilty only on lesser charges of adultery and downloading pornography.

The appellate decision by Gen. James Hill, the Army Southern Command chief who oversees military operations at Guantánamo, wiped the slate clean for Capt. James J. Yee, who ministered for 10 months to foreign terrorism detainees at the United States naval base in Guantánamo Bay, Cuba.

“This means there will be no official mention of it in his military record,” General Hill said.

The decision ended what one of Captain Yee’s lawyers, Eugene Fidell, called a “hoax” case.

The case had started to smell pretty bad since shortly after it was filed. Heads should roll over this one. But they won’t. Meanwhile Yee’s marriage, his career, his life, are all badly hurt, even if there’s nothing official in his file.

An Example of the Fruits of Judicial Review

As the date for oral argument in front of the US Supreme Court approaches, the Pentagon underakes a PR offensive, and allows (carefully controlled) information to come out about the conditions at Guuantanamo. The Miami Herald gets the first exclusive.

U.S. military opens doors, sheds light on Cuba camp: For the first time since terrorism suspects were brought to the base two years ago, authorities in recent weeks opened the door to rooms used for interrogations, provided limited information on efforts to gather intelligence from prisoners and showed off a courtroom where military tribunals likely will be conducted.

They also allowed some photographs of restricted areas and permitted interviews with interrogators and others who deal with the prisoners.

The new access comes as attorneys for the families of 16 captives are seeking access to federal courts to challenge their indefinite detention. The U.S. Supreme Court will hear oral arguments on April 20.

Note what’s not in the article: information about suicide attempts, self-injury, or much about the conditions outside of Camp Echo — which is small, and is the luxury wing of the camp. Whatever its skills at nation building, the Pentagon remains champs at lobbying and PR.

New Gitmo Lawsuit

The NYT reports on a new Gitmo lawsuit. Its filed by Lt. Cmdr. Charles Swift, a militiary lawyer (JAG) defending one of the Guantanamo detainees. The suit — filed in his own name! — challenges the fundamental legality of the military tribunal order setting up the procedure by which the detainees will be tried. That’s the process that foreign jurists call a Kangaroo Court.

Prof. Neil Katyal is on the case, and the complaint is on his webpage.

I have to say that I really admire the military lawyers who are pursuing these cases. They face a much more substantial career risk than the average partner who has to choose between billables and pro bono zeal. Suing Rumsfeld personally takes guts.

Major Mori, American

The New York Times has a nice story about the Australian reaction to Major Mori, the Marine lawyer who is defending Guantanamo detainee David Hicks with all the skills at his command. By all accounts, Major Mori’s the sort of person who makes us all proud. (See also my earlier item on Mori.)

First Guantanamo Trials Likely to Strain Legality, Credulity

Prof. Neal Katyal of Georgetown has a depressing if unsurprising item in Slate, Gitmo’ Better Blues - The folly of the new Guantanamo trials, suggesting that the first round of Gitmo charges will not be big fish, and will not be clear examples of war crimes by fiendish terrorists…but rather…an accountant and the videographer of the Cole bombing. Folks who worked with bad folks, yes, but, as Prof. Katyal puts it,

But despite the tremendous merits of our civilian conspiracy law, these military charges are unconstitutional, inconsistent with international law, and unwise.

They will demonstrate what critics of the military tribunals have been saying all along: that the administration has sought to create an end run around guarantees of fundamental rights enshrined in our Constitution and universally accepted agreements such as the Geneva Conventions.

…

While glorifying the Cole bombing and moving al-Qaida money are certainly bad acts, if there were any evidence that these two men actually engaged in serious war crimes, it would be in the indictment. It’s not. Instead, the government can only allege the amorphous crime of aiding of al-Qaida.

Contrast these vague indictments with the position of Assistant Attorney General Herbert Wechsler during World War II. Wechsler, perhaps the most important 20th-century scholar of American criminal law, deplored a Pentagon proposal to file conspiracy charges against Germans who were not “prime leaders.” To Wechsler, such charges could not be based on ideas drawn from American conspiracy law without “proof of personal participation in a specific crime.” In the absence of such proof, he said, “the force of the broad criminal charge against the leaders may be seriously weakened in the eyes of the world,” especially “if too many individuals are included in it.” Today there is no Wechsler in the administration advising restraint—striking, in light of America’s recent experience with the Independent Counsel Act, another device that encouraged overzealousness at the price of balance and fairness. Fairness and process, of course, can give way in an emergency or when the matter concerns Bin Laden or his close associates. But a cameraman and an accountant, even if they double as bodyguards, just don’t come close.

Be proud, fellow citizens, of what your country does in your name. Or throw the rascals out.

Oh yeah, and there’s this:

To make matters worse, the conspiracy charges in both of the indictments are based largely on conduct that occurred before 9/11, yet military commissions can only adjudicate violations of the laws of war. It is a tremendous stretch to argue that this war began in 1999 or 1989.

UK's Released Detainees Allege Torture

Both the UK’s Observer newspaper, Revealed: the full story of the Guantanamo Britons, and the UK’s tabloid Daily Mirror, My Hell in Camp X-Ray describe charges of torture and inhuman treatment at Guantanamo levvied by UK citizens returned to England after two years of detention in Guantanmo.

Outside independent review — ideally judicial review — is essential either to rebut these claims convincingly or to root out and punish those responsbile if the uglier charges are at all true.

From the Observer’s story:

Three British prisoners released last week from Guantanamo Bay have revealed the full extent of British government involvement in the American detention camp condemned by law lords and the Court of Appeal as a ‘legal black hole’.

Shafiq Rasul, Ruhal Ahmed and Asif Iqbal, the so-called ‘Tipton Three’, speaking for the first time since their release at a secret location in southern England, have disclosed to The Observer the fullest picture yet of life inside the camp on Cuba where America continues to hold 650 detainees.

After more than 200 interrogation sessions each, with the CIA, FBI, Defence Intelligence Agency, MI5 and MI6, America has been forced to admit its claims that the three were terrorists who supported al-Qaeda had no foundation.

…

• The existence of a secret super-maximum security facility outside the main part of Guantanamo’s Camp Delta known as Camp Echo, where prisoners are held in tiny cells in solitary confinement 24-hours a day, with a military police officer permanently stationed outside each cell door. The handful of inmates of Camp Echo include two of the four remaining British detainees, Moazzem Begg and Feroz Abbasi, and the Australian, David Hicks;
• That they endured three months of solitary confinement in Camp Delta’s isolation block last summer after they were wrongly identified by the Americans as having been pictured in a video tape of a meeting in Afghanistan between Osama bin Laden and the leader of the 11 September hijackers Mohamed Atta. Ignoring their protests that they were in Britain at the time, the Americans interrogated them so relentlessly that eventually all three falsely confessed. They were finally saved - at least on this occasion - by MI5, which came up with documentary evidence to show they had not left the UK;
• That their first interrogations by British investigators - from both MI5 and the SAS - took place in December 2001 and January 2002 when they were still being held at a detention camp in Afghanistan. Guns were held to their heads during their questioning in Afghanistan by American soldiers, and physical abuse and beatings were rife. At this point, after weeks of near starvation as prisoners of the Northern Alliance, all three men were close to death.

…

Ahmed described an interrogation session which took place before he left Afghanistan by an officer of MI5 and another official who said he was from the Foreign Office: ‘All the time I was kneeling with a guy standing on the backs of my legs and another holding a gun to my head.

From the Daily Mirror:

Jamal al-Harith, 37, who arrived home three days ago after two years of confinement, is the first detainee to lift the lid on the US regime in Cuba’s Camp X-Ray and Camp Delta.

The father-of-three, from Manchester, told how he was assaulted with fists, feet and batons after refusing a mystery injection.

…

He said detainees were shackled for up to 15 hours at a time in hand and leg cuffs with metal links which cut into the skin.

Their “cells” were wire cages with concrete floors and open to the elements - giving no privacy or protection from the rats, snakes and scorpions loose around the American base.

He claims punishment beatings were handed out by guards known as the Extreme Reaction Force. They waded into inmates in full riot-gear, raining blows on them.

…

Now Jamal bears the scars of Guantanamo. He stoops into a hunch as he walks because the shackles that bound him were too short.

As a punishment, inmates would be confined so tightly they would be forced to lie in a ball for hours. During lengthy interrogation, they would be tethered to a metal ring on the floor.

Jamal said: “Sometimes you would be chained up on the floor with your hands and feet actually bound together. One of my friends told me he was kept like that for 15 hours once.

“Recreation meant your legs were untied and you walked up and down a strip of gravel. In Camp X-Ray you only got five minutes but in Delta you walked for around 15 minutes.”

Jamal said victims of the Extreme Reaction Force were paraded in front of cells. “It was a horrible sight and it was a frequent sight.”

He said one unit used force-feeding to end a hunger strike by 70 per cent of the 600 inmates. The strike started after a guard deliberately kicked a copy of the Koran.

Rice and beans was the usual diet and the water was “filthy”. Jamal added: “In Camp X-Ray it was yellow and in Delta it was black - the colour of Coca-Cola.

“We had it piped through with a tap in each ‘cage’ but they would often turn the water off as punishment.

“They would shut off the water before prayers so we couldn’t wash ourselves according to our religion.

“The food was terrible as well, up to 10 years out-of-date. They would open a hatch and shove it through a section at a time.

“We had porridge and something they called ‘like-milk’, which was disgusting and ‘like-tea’ and a piece of fruit. The fruit had been frozen and pounded with chemicals. An apple might look red but there was waxy white stuff all over it and inside it would be black and brown.

“They would play tricks on people by denying them things - you might be the only person on your block who didn’t get any bread. I prided myself on never asking them for anything. I would not beg.” Jamal said they were told they had no rights. “They actually said that - ‘You have no rights here’. After a while, we stopped asking for human rights - we wanted animal rights. In Camp X-Ray my cage was right next to a kennel housing an Alsatian dog.

“He had a wooden house with air conditioning and green grass to exercise on. I said to the guards, ‘I want his rights’ and they replied, ‘That dog is member of the US army’.

I have to say that several aspects of the Mirror’s account are hard for me to believe. I do not believe the US would starve detainees or feed them spoiled food. Would it? And the stuff the Mirror repeats about the use of prostitutes to shock sensitive Muslims with naked bodies and menstral blood sounds just too weird — more like the propaganda of a person who has been held illegally in hard conditions for two years and wants his revenge.

One of the many bad consequences of the secrecy of the detenetions and the decisions to set up camps outside the law is that it makes it hard for the US to rebut this propaganda effort even among those who want to trust it…much less those who do not.

Military Lawyers Condemn Guantanamo Trial Rules As "Fundamentally Unfair"

It’s good that the lawyers are being agressive, but odd indeed that they don’t get to communicate with their clients…or even know if the clients are aware they have been charged. What kind of a system doesn’t tell the defendant the charges against him? Only a very, very, very bad system, that’s what.

Lawyers condemn ‘unfair’ terror trial rules (may require registration): US military officers assigned as defence lawyers to the first prisoners to be charged at Guantanamo Bay say the tribunal rules under which they will be tried are fundamentally unfair and hopelessly antiquated.

“We are concerned with virtually every aspect of the military commission process and the impact it will have on our clients’ chances of getting a fair trial,” Navy Lt Cdr Philip Sundel said.

Army Major Mark Bridges said that he and Lt Sundel were planning to raise several motions related to the rules and procedures being followed at the Guantanamo Bay military tribunals, the first of their kind since the Second World War.

“The bottom line is it’s an outdated system that was pulled off the shelf and dusted off. The law has advanced a lot since then, both internally and domestically. The standards that were applied then simply aren’t acceptable today,” Major Bridges said.

The two lawyers will defend Ali Hamza Ahmed Sulayman al Bahul, of Yemen, who was charged along with Ibrahim Ahmed Mahmoudf al Qosi, of Sudan, with conspiracy to commit war crimes.

Lt Sundel said neither he nor his colleague had been allowed to speak to al Bahul and they did not know whether he had even been told of the charge against him, announced earlier this week.

It’s sorta like watching a race. Does the Adminstration exhibit a greater lack of decent respect for Justice, or for the opinions of mankind?

US to Release 5/9 of UK Detainees

The Daily Telegraph has the story

Five of the nine British prisoners being held in Guantanamo Bay are to be released, the Foreign Office has announced.

Jack Straw, the Foreign Secretary, said they would return to Britain “in the next few weeks”.

Police will consider whether they should face questioning under the Terrorism
Act 2000 when they get back to Britain, Mr Straw said.

He added that discussions were continuing with the US authorities over the other four Britons.

The five suspects to be freed are Rhuhel Ahmed, Tarek Dergoul, Jamal al Harith, Asif Iqbal and Shafiq Rasul.

Discussions about the fate of the remaining four British detainess were ongoing, but Mr Straw said they “should be tried in accordance with international standards or returned to the UK”.

…

Lord Goldsmith, the Attorney-General, declared the Government’s opposition
to the military tribunals, saying they “would not provide the type of process we would afford British nationals”.

His judgment followed an earlier ruling by the Court of Appeal which said the detainees were being held in a “legal black hole” and described their treatment as “objectionable”.

…

Rumours have been rife for many months that the detainees could be released
subject to a deal being done with their American captors.

However, a debate has raged on as to how to deal with any Britons released with critics accusing the Government of delaying negotiations because it did
not want the suspects to be tried in Britain because the evidence against them was so flimsy.

Following Mr Straw’s announcement, David Blunkett, the Home Secretary, signalled that it was unlikely that the men would face trial in Britain.

He said: “I think you will find that no one who is returned in the announcement today will actually be a threat to the security of the British people.”

So there you have it: 5 out of 9 UK citizens held without charge or access to counsel or to their families for a two-year period are clearly not dangerous, and were held for extra time as hostages in a negotiation over the rights of the other four. Be proud of your country, fellow Americans.

'Senior Defense Official' Plans to Hold Guantanamo Detainees Pretty Much Forever

This is what has become of the American Way of Justice. This is what has become of the land that wanted to be the City on the Hill, the beacon to freedom, the model of the Rule of Law. Fellow citizens, be proud of what your government does in your name—or throw the rascals out.

Cuba Detentions May Last Years: Senior Defense Department officials said Thursday that they were planning to keep a large portion of the detainees at Guantánamo Bay, Cuba, there for many years, perhaps indefinitely.

…

“But whether a person is to be charged before a military commission is not the reason we’re holding them,” said the senior defense official. The official said it was possible that an individual could be convicted by a tribunal and serve a five-year sentence and then not be released if he were judged to remain a danger.

You want trials? OK we’ll have kangaroo courts, without judicial supervision and no appeals to any Article III judges, not even the Supreme Court. And after we convict, they serve their time, and then we hold them some more.

There’s actually a weird logic here: if you consider the detainees to be a species of POW in the ‘War Against an Ism’ and you understand that by its nature an Ism can’t be defeated, it follows the war will last a very very long time. And we don’t release enemy soldiers during the war, do we?

Only problem, of course, was that if the detainees were ordinary enemy soldiers the Geneva Convention would apply to them. And if we had doubts about their status our treaty obligations require us to resolve those doubts. But we’re not going to do that. At least not until after the next election.

Released Guantanamo Child Detainee Praises Conditions--But Not Abduction

The Daily Telegraph’s headline is a little tongue-in-cheek, but it suggests that if you are destitute, regular meals and a few English lessons make prison a lot less awful.

It is heartening to read that children in Camp Iguana, the lower-security camp for juveniles next to Camp Delta, are being treated well. (Here’s hoping that this is an accurate report and not Stockholm Syndrome.) It is not heartening to read of kids scooped up off the street and held for a year or more before their parents know if they are dead or alive.

I had a good time at Guantanamo, says inmate: An Afghan boy whose 14-month detention by US authorities as a terrorist suspect in Cuba prompted an outcry from human rights campaigners said yesterday that he enjoyed his time in the camp.

Mohammed Ismail Agha, 15, who until last week was held at the US military base in Guantanamo Bay, said that he was treated very well and particularly enjoyed learning to speak English. …

In a first interview with any of the three juveniles held by the US at Guantanamo Bay base, Mohammed said: “They gave me a good time in Cuba. They were very nice to me, giving me English lessons.”

Mohammed, an unemployed Afghan farmer, found the surroundings in Cuba at first baffling. After he settled in, however, he was left to enjoy stimulating school work, good food and prayer.

“At first I was unhappy … For two or three days [after I arrived in Cuba] I was confused but later the Americans were so nice to me. They gave me good food with fruit and water for ablutions and prayer,” he said yesterday in Naw Zad, a remote market town in southern Afghanistan close to his home village and 300 miles south-west of Kabul, the capital.

…

Mohammed said his detention began in November 2002 when he and a friend, both unemployed, left their farming community for Lashkar Gah, a nearby town. He said that as they stood outside a shop they were detained by a group of armed men who accused them of being members of the Taliban, the fundamentalist Islamic movement formerly in power in Afghanistan.

…

“They were asking me if I was Taliban. I said, ‘No, I am innocent’. I thought they were going to release me but instead they put me on a plane,” he said. “They asked me to wear a hood for part of the journey. When I got off the plane I was in Cuba.”

While Mohammed praised the American soldiers who watched over him, he criticised the US authorities for failing to contact his parents for 10 months to let them know that he was alive. “They stole 14 months of my life, and my family’s life. I was entirely innocent: just a poor boy looking for work,” he said.

…

Human rights agencies such as Amnesty International have alleged that the detention of the boys contravened the Geneva Convention, saying the separation from their families amounted to a form of mental torture. One of the boys was just 11 when he was detained.

…

Another US government official contradicted Mohammed’s claims that he was entirely innocent when detained. The official said last week that one of the three boys had told of being conscripted into an anti-American militia group.

Isolation to Continue Pending Review

The full Supreme Court today endorsed the earlier one-Justice stay of the 9th Circuit’s order in Bush v. Gherebi. That means that the detainees will not be informed that the Supreme Court, or anyone, is considering their situation. They can rot in limbo some more.

While it’s in no way surprising that the Supreme Court should preserve the status quo pending its decision—indeed it’s the only thing it could do given the government’s claim of irreparable harm to national security—it is a little surprising that Solicitor General Olson is prepared to sign a brief stating (according to AP) that national security would be damaged by notice that the Supreme Court granted cert.

Communication with the prisoner would “interfere with the military’s efforts to obtain intelligence from Gherebi and other Guantanamo detainees related to the ongoing war against terrorism,” Olson wrote in an emergency filing last week.

Seems somewhat implausible that these mid- and low- and very low-level folks have anything of value to say after this long, doesn’t it?

Maj. Mori's Australian TV Interview

Further to my earlier item on Major Michael Mori, a helpful Australian reader sent me a link to the transcripot of the Major’s interview with the Australian Broadcasting Corporation, Hicks lawyer unimpressed with legal process. Sounds like a real good lawyer to me.

Maj. Michael Mori: Bravery Under Very Hostile Conditions

Law from the Center is UCLA law student blog, by a serving Army Captain. It has a very nice post about the amazing gumption shown by USMC Maj. Michael Mori in giving a press conference attacking the procedures being proposed for the Guantanamo Kangaroo courts hearings. (Lest you think that this Kangaroo court reference is unfair, I’ll point you to the remark by Lord Steyn, and to Maj. Mori’s claim that the tribunal is “created and controlled by those with a vested interest only in convictions” and that “Using the commission process just creates an unfair system that threatens to convict the innocent and provides the guilty a justifiable complaint as to their convictions.”)

I not only agree with everything in the “Law from the Center” post, I’ll go one better (otherwise it wouldn’t look so centrist, would it?). As I understand it, in the ordinary military law case, the lawyers who represent the defendant are kept in a different chain of command from the judges. This ensures their independence. I am reliably informed that several months ago, at least, the design for the tribunals did not include this independence, but that rather because everyone there is assigned to the Guantanamo base, the defense lawyers were to serve in the same chain of command as— ie effectively subordinate to—some or all of the officers acting as judges.

I don’t know if this has changed since my correspondent observed this first-hand. If it hasn’t, it’s one of those serious structural problems that never gets the attention it deserves.

Meanwhile, I’d love a link to Maj. Mori’s brief…

All the Briefs in the U.S. Supreme Court Guantanamo Bay Cases

Jenner & Block’s full-service U.S. Supreme Court Guantanamo Bay Cases: Brief Resource Center. Spotted via the invaluable SCOTUSBlog

34th Suicide Attempt at Guantanamo

Guantanamo Detainee Attempts Suicide. It’s been a long time since suicide attempt number 33, so this slowdown in the pace of attempts is a sign that maybe the conditions are less awful?

Well, maybe. Or maybe not. It could be that the military has just redefined what constitutes a suicide attempt in an effort to mitigate the awful publicity worldwide caused by the detainees’ apparent beliefs that they were better off dead. Consider this UK report that appeared on Newsnight, a leading news show, while I was in the UK.

MARSHALL:
But this is not a holiday camp. There are currently 660 prisoners. None has any idea if they will ever be freed. In the 13 months up to August this year, there have been 32 suicide attempts. Since then, there has only been one further attempted suicide recorded. They have, however, introduced a separate category - manipulative self injurious behaviour - SIB. It is applied to individuals deemed to have merely feigned suicide attempts. There have been over 40 SIBs since the summer. This new classification troubles Britain’s leading forensic psychiatrist.

DR JAMES MACKEITH
(Maudsley Royal Hospital):
It is impossible to authoritatively assess attempts at self harm in such a way as to justify confidence that a particular self-destructive act is designed to have a manipulative purpose, rather than a self-destructive purpose.

MARSHALL:
It is not a valuable clinical definition, as far as you are concerned.

MACKEITH:
It is a new one on me.

Bottom line: we have no idea what’s going on there. (Cf. TalkLeft, noting that while it talks of releasing some unspecified number of detainees sooner or later, the US is also expanding the carrying capacity at Gitmo to almost double what it is now…)

Not As Hypothetical As I'd Like

The Liquid List directs me to Interrogation, Torture, the Constitution, and the Courts in which I learn that one of the hypothetical questions I created for my international law exam last semester is not quite as hypothetical as I thought.

The question read,

Suppose that the Supreme Court affirms the D.C. Circuit in Al Odah v. US. And suppose that the Cuban courts also refuse to entertain any claims relating to conditions in the US-controlled part of Guantanamo.

If at some time in the future certain Guantanamo detainees, those most strongly suspected of being high-ranking terrorists, are being tortured by US military or civilian personnel, what recourse, if any, do they or those concerned about them have while they remain incarcerated?

Turns out that the government has an answer to this question, which it gave to the Ninth Circuit—even a detainee being tortured has no recourse in the US courts:

According to the government’s stated position in the case, the detainees have absolutely no legal right to question U.S. actions on Guantanamo. Federal court jurisdiction should be foreclosed, government counsel insisted during oral argument before the Ninth Circuit, even if the plaintiffs were to claim that their captors were committing “acts of torture” on Guantanamo or were “summarily executing the detainees.”

Of course, as one of my students had noted when we discussed this question in class, US courts are not the only possible forum and the detainees not the only possible instigators of legal action. For example, the detainee’s government could raise a claim in the ICJ, make representations, take the matter to the UN, perhaps even exercise a right of reprisal. Furthermore, illegal acts such as torture could be prosecuted in a US court if the US government chose to do so; we can hold to the hope that it would. (Although currently the US seems to have other sorts of Gitmo-related prosecutions on its mind.)

Be that as it may, it’s a sad day when a US government law officer tells a court that our government claims the right, even theoretically, to torture people with impunity.

Wheels of Justice Grind Slow...But Grind They Do

Larry Solum summarizes the 2nd Circuit decision in Padilla v. Rumsfeld, which saves me a lot of typing.

Also, the 9th Circuit is reported to have decided that the Guantanamo detainees have a right to lawyer! See the AP Report. The case is Gherebi v. Bush, 03-55785, and if anyone has a link, please post it in the comments.

Senior UK Judge Attacks US For Guantanamo Detentions Without Trial

‘Monstrous US justice’ attacked by law lord. Very, very strong words about the Guantanamo detentions from a normally reserved senior English judge: “By denying the prisoners the right to raise challenges in a court about their alleged status and treatment, the United States government is in breach of the minimum standards of customary international law.”

Lord Steyn also called the proposed military commissions “a stain on United States justice” and predicted that they would be regarded as “kangaroo courts,” which he defined as an “irregular tribunal which makes a mockery of justice.”

One of Britain’s most senior judges condemned the American courts last night for a “monstrous failure of justice” by refusing to rule on the claims of Taliban suspects held without trial at Guantanamo Bay in Cuba.

Lord Steyn, a serving law lord, said the United States was acting illegally by holding the men without trial since their transfer from Afghanistan early last year.

…

Lord Steyn, 71, the third most senior law lord, said that under English law the writ of habeas corpus would protect citizens and foreigners. That was consistent with human rights law, which Lord Steyn concluded, the US had broken.

What Motivated the Cert Grant In Guantanamo Case? Linda Greenhouse Thinks She Knows

I usually like Linda Greenhouse’s work, and I’ve been trying to figure out why this news analysis item on the Supreme Court’s decision to hear the jurisdictional aspect of the Guantanamo detainees case is so annoying.

For starters, I don’t find the account of the Court and the Executive going toe to toe while hepped up in “alpha mode” at all convincing. (I also don’t find it attractive, but that’s a different issue.) She writes, “it now appears that the administration laid down a challenge the justices were unwilling to ignore. This was a moment long in coming: the imperial presidency meets the imperial judiciary.” I think this is way over-dramatic for a ruling to grant cert. on jurisdiction.

Greenhouse argues that the administration took a needlessly hard line in arguing the court should deny cert. and this somehow poked a stick in the court’s metaphorical eye. But what else was the Solicitor General supposed to do?

The government won unanimously below on the jurisdictional grounds, there is no circuit split (quite the contrary), so why on earth should they invite the Supreme Court to rule, which can only hurt the Administration’s position? In any case, when a matter has international law overtones — and the question of where our domestic law runs always does — it’s not surprising that the nation’s highest court might think it appropriate to get involved.

Is it true that, “The administration’s argument that the Supreme Court should not even hear the cases was thus a direct challenge to the court’s sense of itself, a battle joined on the court’s own most sacred ground”? No. Not at all. After all, the basis for the administration’s argument, one that prevailed below, is grounded directly in a plausibly apposite decision of that same Supreme Court.

And the claim that the government should have defended the cert petition “on the merits” is just plain wrong: the court below did not rule on the merits, so the merits are not before the Supreme Court.

And, for a final annoyance, after having psychologized the court on the basis of a one-paragraph grant of cert., Greenhouse concludes with this,

The battle over who gets the last word in this round may have little bearing on the fate of the Guantánamo detainees. Even if the court finds jurisdiction, it is highly unlikely that any federal judge would order a detainee’s release over military objections. But that does not diminish the importance of what happened on Monday, when the Supreme Court could have turned away but decided, instead, to decide.

In other words (shorter Linda Greenhouse?),

• I can read the Justice’s hearts and minds and measure their testosterone, but I can’t tell you what they are going to decide.

Maybe I’m just a perennial optimist, but I think the grant of cert. is a marginally good sign. Grants of cert where there’s no circuit split can be just because of the importance of an issue, but sometimes they’re because members of the court think the lower court(s) erred.

And, as noted in an earlier and better Linda Greenhouse item, something can be learned from

a comparison of how the administration phrased the question presented by the two cases with how the justices phrased it in their order granting review. Solicitor General Olson said the question was whether the federal courts had jurisdiction to decide the legality of detaining “aliens captured abroad in connection with ongoing hostilities and held outside the sovereign territory of the United States at the Guantánamo Bay Naval Base, Cuba.”

The Supreme Court, by contrast, said it intended to decide the jurisdiction of the courts to hear challenges to “the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantánamo Bay Naval Base, Cuba.” The court’s question incorporated no assumption about whether the base was or was not “outside the sovereign territory of the United States.”

Which at least leaves open the possibility of a fairly narrow ruling applying only to territory where the US has a perpetual lease and a permanent presenence. That would do, for now.

Supreme Court Grants Cert to Decide if Guantanamo Detainees Can Be Heard in Our Courts

Supreme Court Takes First Case on Guantánamo Detainees. The Supreme Court granted cert in and consolidated two cases relating to the Guantánamo detainees. Both raise purely jurisdictional issues.

In one case, Rasul v. Bush (No. 03-334) three detainees’ parents sought writs of habeas corpus. Here’s the cert petition.

In the other case, Al Odah v. United States (No. 03-343) (cert petition), relatives of twelve detainees sought to challenge the legality of the detention under the Alien Tort Statute, 28 USC § 1350, the Administrative Procedures Act (APA), and the 5th Amendment. They sought a declaration that the detention is arbitrary and capricious, and that the detainees should have an opportunity to speak to a lawyer.

The D.C. Circuit ruled in both cases at once, holding that “the courts are not open” to the detainees, 321 F.3d 1134, because Guantánamo is outside the sovereignty of the United States, and our courts thus lack jurisdiction to hear their claims. The court opinion, authored by Judge Randolph, comes with an interesting concurrence by … Judge Randolph, in which he really goes to town, not only rejecting the dominant reading of the Alien Tort Statute and offering one that effectively neuters it, but also finding that the APA provides no relief for the plaintiffs.

While I disagree vehemently with the view that there is no federal habeas jurisdiction, nor jurisdiction via the Alien Tort Act, I think at first glance that I do agree with Judge Randolph about the APA claims. The APA explicitly does not apply to the military.

The path of least resistance for the Supreme Court is to do what the lower courts did and follow Johnson v. Eisentrager, 339 U.S. 763 . I explained in an earlier post how Application of Yamashita provides an alternate approach under which the courts would have jurisdiction to hear this claim.

Let’s hope that the Supreme Court has the courage to step up to the plate on this one.

If it doesn’t, it becomes our collective moral obligation to demand that Congress extend its undoubted power to extend the jurisdiction of the federal courts to Guantánamo. Not that I’ll hold my breath, you understand.

Former Guantanamo Inmate sues US In Pakistan

BBC NEWS | South Asia | Former Guantanamo inmate sues US

A man who was imprisoned by the US military at Guantanamo Bay, Cuba, is suing the Pakistani and US governments for damages worth over $10m.

Pakistani cleric Mohammed Sagheer was seized by US troops fighting in Afghanistan in 2001.

He spent roughly a year with other suspected al-Qaeda and Taleban operatives in the US military prison.

His lawyers say he is suing for the mental and physical torture he endured at Camp X-Ray in Guantanamo Bay.

‘Treated like an animal’

Mr Sagheer filed his suit in an Islamabad court on Tuesday.

Lawyers acting for him said the case could be heard in a Pakistani court because Pakistan’s interior ministry is one of the defendants.

In the first case of its kind, Mr Sagheer described his arrest by American authorities as illegal and his treatment at the prison camp in Guantanamo Bay as extremely inhuman.

He says he was kept for more than a year in a prison cell that was like a cage meant for animals.

During this period he says he was treated in the worst possible manner and was repeatedly interrogated about his links to al-Qaeda and Osama bin Laden.

Despite insisting that he no ties to the Islamic militant group, Mr Sagheer says he was punished by the authorities for what they saw as his lack of co-operation.

After being released by the Americans, Mr Sagheer says he was sent back to Pakistan, where he spent a few more days in detention.

The court has decided to hold a preliminary hearing for the case in the third week of December.

I suspect that the US will plead sovereign immunity and act of state, if it even shows up to defend. As the act of state doctrine has roots in the comity among nations, I imagine that Pakistan would ordinarily respect this claim…

On the other hand, if the Pakistanti court were to decide that the ‘torture’ alleged violated fundamental norms of international law, it might not dismiss the claim out of hand, as it is sometimes suggested that act of state ought not to protect against fundamental violations of international law.

Two earlier BBC stories on this are here and here.

US Jurisdiction in Guantanamo -- Some Complexities

Earlier, I had what seemed like a great idea:

Personally, I would be prepared to read the words “the United States shall exercise complete jurisdiction and control” language of the treaty as invoking the powers of all three branches of government, not just the executive. In this view, under Art. VI of the Constitution (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.”), the treaty would supply the jurisdiction for the federal courts that they seem to believe they lack under Article III.

On reflection, this isn’t quite as great an idea as it seemed. Or, maybe it is, but it isn’t as simple to get there as I would like.

First problem. Is the treaty-self executing? In the US, most treaties are presumed not to be self-executing, which means that Congressional action is required to give them domestic legal effect. A quick Westlaw search of the US Code reveals nothing that could be seen to give these agreements domestic legal effect except maybe for 18 U.S.C.A. § 7, which defines the “special maritime and territorial jurisdiction of the United States” in a way that might include Gitmo. Even if it does, all it does is make various aspects of US criminal law applicable, not civil suits. I think it ought to be the rule that acquisitions of jurisdiction are self-executing; it’s not at all clear that the Supreme Court agrees.

Second problem. Supreme Court precedent. A little research showed that the Supreme Court makes a rather arbitrary distinction between a mere “possession” over which the US has full control, and territory over which it has “sovereignty”. One could question the wisdom, indeed the meaningfulness, of this distinction, but it’s there in the cases, at least in the statutory construction context.

United States v. Spelar, 338 U.S. 217 (1949), concerned a Federal Tort Claims Act claim arising from an airplane crash at Harmon Field, Newfoundland, an air base leased for 99 years by Great Britain to the United States. In the course of holding that the air base was a in “foreign country” for purposes of the FTCA because it was subject to British sovereignty, the Court stated, “We know of no more accurate phrase in common English usage than ‘foreign country’ to denote territory subject to the sovereignty of another nation.” So by this logic Gitmo is a mere possession, not part of our sovereignty. And our statute laws don’t run there unless Congress explicitly makes them extra-territorial. Without researching more, I don’t know if that necessarily limits claims arising directly under the Constitution, especially habeus claims, but it imposes a potential jurisdictional bar that needs surmounting.

Justice Frankfurter concurred in Spelar, anticipating the modern problem,

The Court’s opinion finds the phrase ‘foreign country,’ in that Act’s restriction against ‘claims arising in a foreign country,’ to be as compelling in excluding the Newfoundland air base, under the kind of control that the United States exercises at these bases, as less than a year ago it found the term ‘possessions’ in the Fair Labor Standards Act to be compelling in including these bases. Vermilya-Brown Co. v. Connell, 335 U.S. 377, 69 S.Ct. 140. To assume that terms like ‘foreign country’ and ‘possessions’ are self-defining, not at all involving a choice of judicial judgment, is mechanical jurisprudence at its best. These terms do not have fixed and inclusive meanings, as is true of mathematical and other scientific terms. Both ‘possessions’ an ‘foreign country’ have penumbral meanings, which is not true, for instance, of the verbal designations for weights and measures. It is this precision of content which differentiates scientific from most political, legislative and legal language.

A ‘foreign country’ in which the United States has no territorial control does not bear the same relation to the United States as a ‘foreign country’ in which the United States does have the territorial control that it has in the air base in Newfoundland. In the entangling relationships between such nations as Great Britain and this country, it is not compelling that ‘foreign country’ means today what it may have meant in the days of Chief Justice Marshall, or even in those of Mr. Justice Brown. The very concept of ‘sovereignty’ is in a state of more or less solution these days. To find a single and undeviating content for ‘foreign country’ necessarily excluding these bases, while ‘possessions’ of the United States is to be deemed as necessarily including them, despite the momentum of historic meaning and experience leading to a contrary significance of ‘possessions,’ is to give the appearance of logically compulsive force to decisions. It fails to recognize the scope of supple words that are the raw materials of legislation and adjudication and is unmindful of those considerations of policy which underlie, consciously or unconsciously, seemingly variant decisions. When so many able judges can so misconceive the implications of our decision in Vermilya-Brown Co. v. Connell, supra, as they have been found to misconceive them, the source of difficulty cannot be wholly with these able lawyer court judges.

Note: Brad DeLong linked to my earlier effort and commented that Guantanamo Bay is a gap in seisin-it is a terra sine domine, a land without a lord, and among the oldest principles of the Feudal and Ancient Common Law is that such a gap in seisin is impossible—that for every square inch of the earth not currently engaged in active military operations, there is a normal peacetime court to take jurisdiction and judge offenses.

I regret to say that our courts are all too comfortable with such gaps. The leading example is Smith v. United States, 507 U.S. 197 (1993), which I used to use as the last reading in my Jurisprudence class. In Smith the Supreme Court held that Antarctica was a “foreign country” for FTCA purposes, even though it was not a country and is “a sovereignless region without civil tort law of its own”. Justice Stevens wrote a brilliant dissent.

It begins,

In my opinion the Court’s decision to grant certiorari in this case was a wise exercise of its discretion. The question whether the United States should be held responsible for the tortious conduct of its agents in the vast “sovereignless region” of Antarctica, ante, at 1180, is profoundly important, not only because its answer identifies the character of our concern about ordinary justice, but also because Antarctica is just one of three vast sovereignless places where the negligence of federal agents may cause death or physical injury. The negligence that is alleged in this case will surely have its parallels in outer space as our astronauts continue their explorations of ungoverned regions far beyond the jurisdictional boundaries that were familiar to the Congress that enacted the Federal Tort Claims Act (FTCA) in 1946….

The issue at the heart of all this is that I think it ought to be the rule that, as Mr. Dooley put it, ‘th’ constitution follows th’ flag. The Navy, the President, his minions, all derive their power from[*] the Constitution. They must take the bitter with the sweet, and accept the shackles of due process and habeus corpus that come with the great power entrusted to them. I wish I were more confident that the Supreme Court will see it that way.

Don’t underestimate what’s at stake here. A ruling that there’s no way for the Gitmo detainees to get a court to consider their plight may be one that requires no judicial creativity, but it is a ruling that even if they were being killed or tortured by our government (and there are allegations being made by some that prolonged solitary confinement, without any idea how long you will be held, amounts to torture) our courts will not hear them. That should bother you. It bothers me.

[*] typo corrected.

Even If US Courts Don't Have Jurisdiction Over Guantanamo, There Is No Recourse to Cuban Courts

In response to my most recent item on Guantánamo Edward Hasbrouck asks this reasonable question: “if courts in the USA say Guantanamo isn’t under their jurisdiction, doesn’t that mean they would have to recognize Cuban jurisdiction?”

The answer to this question is unusually clear: No.

The US has signed two treaties with Cuba that relate to Guantánamo. In 1903 the US and Cuba signed a treaty (US Treaty Series No. 426) which provides,

While on the one hand the United states recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of the occupation by the United states of said areas under the terms of this agreement the United states shall exercise complete jurisdiction and control over and within said areas with the right to acquire (under conditions to be hereafter agreed upon by the two Governments) for the public purposes of the United States any land or other property therein by purchase or by exercise of eminent domain with full compensation to the owners thereof.

The more recent treaty, the Treaty Between the United States of America and Cuba of 1934 (US Treaty Series No. 866) abrogates the 1903 agreement in Article I, but then in Article III states,

Until the two contracting parties agree to the modifications or abrogation of the stipulations of the agreement in regard to the lease to the United States of America of lands in Cuba for coaling and naval stations signed by the President of the Republic of Cuba on February 16, 1903, and by the President of the United States of America on the 23rd day of the same month and year, the stipulations of that agreement with regard to the naval stations of Guantanamo shall continue in effect. The supplementary agreement in regard to naval or coaling stations signed between the two Governments on July 2, 1903, also shall continue in effect in the same form and on the same conditions with respect to the naval station at Guantanamo. So long as the United States of America shall not abandon the said naval station of Guantanamo or the two Governments shall not agree to a modification of its present limits, the station shall continue to have territorial area that it now has, with the limits that it has on the date of the signature of the preset Treaty.

So the Gitmo provisions survive until the US and Cuba agree to change them. And Cuban courts have no jurisdiction to intervene.

Personally, I would be prepared to read the words “the United States shall exercise complete jurisdiction and control” language of the treaty as invoking the powers of all three branches of government, not just the executive. In this view, under Art. VI of the Constitution (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.”), the treaty would supply the jurisdiction for the federal courts that they seem to believe they lack under Article III.

Guantanamo: Our Collective Shame

As citizens we all bear a degree of collective responsibility for what our government does in our name. That responsibility is greater when we are or should be on notice. And thus, we are all responsible for what is happening in Guantanamo detention camps.

We are collectively responsible for what is happening in Camp Delta and Camp Iguana (the latter holds children). It is, or it should be, a matter of shame that our government chose to confine the Camp Delta prisoners in solitary, indefinitely, without news or the prospect of having their cases determined in the foreseeable future and where the policy is “We interrogate seven days a week, 24 hours a day.” (Interrogations, however, are limited [sic] “to no more than 16 straight hours” straight at one go.) There is no right to speedy trial (or other Geneva-convention-style hearing), or even to a trial. If and when trials do begin, there will be no right to to a proper attorney-client relationship even though the trials can end in the death penalty. Nor will there be a right to appeal the initial tribunal’s verdict to a neutral court staffed by judges with the neutrality of perspective that comes from life tenure.

As of a year ago, the BBC was reporting at least 30 suicide attempts out of a prison population of 600. While it’s possible that there is something about the population of detainees that predisposes them to suicide attempts, it’s also quite possible that it’s something about the conditions and, if so, conditions that bad arguably amount to illegal torture under international law. On the other hand, the rate of suicide attempts may be down as a recent CBS report put the total at 32.

This rich nation of ours can afford to give each detainee a first class fair trial, if it wanted to. In so doing it would send a healthy message about our values to the world. The decision not do so is a choice. By making that choice the Administration is sending a terrible message to the world. It’s also a really lousy precedent.

I also believe that it’s constitutionally wrong. Our government is, or should be, an entity subject to the Constitution. I do not read that document to allow our government to act lawlessly and without review. And certainly not indefinitely.

By holding the detainees abroad on formally Cuban [is that our model for legality?] territory, the government has persuaded our courts that its actions there are not subject to ordinary judicial review as our courts believe they lack jurisdiction to intervene. See Al Odah v. U.S., 321 F.3d 1134 (dismissing habeus petition and Alien Tort Claims act claim for lack of jurisdiction); Coalition of Clergy, Lawyers & Professors v. Bush, 310 F.3d 1153 (dismissing habeus petition for lack of jurisdiction). While those court decisions were supported by some precedent, notably Johnson v. Eisentrager, 339 U.S. 763 , I think these courts are fundamentally mistaken. Others, including most recently six former federal judges, agree.

All authority exercised by a government official arises from the Constitution. That document doesn’t give officials the right to act arbitrarily. Their authority is always subject to the Bill of Rights, including the due process clause.

Due process is, however, a sliding scale, which varies with the circumstances. It would be absurd to suggest that due process rights apply to armed combat. (Although the laws of war do apply.) Enemy soldiers don’t have a right to a hearing before our soldiers shoot back at them.

But it is in no way absurd to suggest that due process has something to say to military prisoners being held far from the field of battle. Indeed, the Supreme Court essentially agreed with this claim in Application of Yamashita, when it heard a petition from a Japanese general who was been tried by a U.S. military tribunal in the Philippines, a situation analogous to Guantanamo—except that hostilities were conceded to be over. (The Guantanamo detainees captured in Afghanistan may never enjoy that advantage, if only because the current hostilities—the so-called ‘war on terrorism’—has no likely end.) Suppose, to take an extreme hypothetical, prisoners were being tortured with a rack and thumbscrews. Could it be that the constitution authorizes this? Or—which to me (but, oddly, not to all constitutional theorists) is the same thing—that its silences fail to provide a mechanism to stop it?

It might be that after a proper review, a court would find the conditions in Camp Delta to be consistent with Due Process, and reject claims that detainees are being subjected to cruel and unusual punishment. I don’t have the facts to know how that would come out, although I have uncomfortable suspicions.

Whatever the outcome of that review, I would like my government to be willing to undergo that examination, and to pledge to live with the results.

I’m confident, furthermore, that a reviewing court persuaded of its jurisdiction would demand that procedurally sound hearings be held posthaste to determine each detainee’s proper status.

A government sure of itself, and confident of the rightness of its actions, would not hide the detainees in legal limbo. To do so suggests a meanness of spirit at best, a tendency to lawlessness and something to hide at worst, and a tin ear to the world’s opinion at all times.

We in the US—indeed all those in the Coalition of the willing —are responsible for this. If the courts will not take jurisdiction over events at Guantanamo, then we must demand that all the prisoners held there be moved to a place where ordinary civilized rules apply.