Category Archives: Guantanamo

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.)

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.

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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.

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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?

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.

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.