Psyche, Science, and Society

Guantanamo trials: Habeas releases and war crimes charges reinstated

November 20th, 2008

There is a lot of Guantanamo news today. First, in a major development in one of the first (the first?) habeas hearings, the judge has ordered five of six Algerians to be released, Reuters reports:

WASHINGTON (Reuters) - Five of six Algerians must be released after nearly seven years of captivity at the U.S. military prison at Guantanamo Bay in Cuba, a federal judge ruled on Thursday.

U.S. District Judge Richard Leon ruled from the bench after holding the first hearings under a landmark Supreme Court ruling in June that gave Guantanamo prisoners the legal right to challenge their continued confinement.

U.S. President-elect Barack Obama has promised to close the prison camp after he takes office in January. Meanwhile, U.S. judges in Washington are moving ahead with case-by-case reviews of detainee legal challenges.

I hear that the judge recommended that the Government not appeal, due to lack of evidence for an appeal.

Word also comes that the war crimes charges against Mohammed al-Qahtani, the alleged “20th hijacker” and well-known torture victim, are to be reinstated. Charges against al-Qahtani had earlier been dropped. It was believed this was because of the well-publicized abuse to which he was subjected (abuse involving consultation by Behavioral Science Consulting Team psychologist Maj. John Leso). Reinstating the charges may be a way of binding the hands of the incoming Obama administration, as the New York Times discusses:

Detainee Will Face New War-Crimes Charges

By William Glaberson

Military prosecutors have decided to file new war-crimes charges against a Guantánamo detainee who has been called the 20th hijacker in the Sept. 11 terror plot, discounting claims that his harsh interrogation would make a prosecution impossible.

Earlier charges against the detainee, Mohammed al-Qahtani, were dismissed without explanation by a military official in May and there had been speculation that the Pentagon had accepted the argument that coercive techniques used in questioning him would undermine any trial.

The decision will put additional pressure on the incoming Obama administration to announce whether it will abandon the Bush administration’s military commission system for prosecuting terror suspects. Mr. Qahtani’s well-documented interrogation at the detention camp in Guantánamo Bay, Cuba, has made his case a focal point in debates about Guantánamo and interrogation methods that critics say amount to torture.

In response to questions about the military commissions on Tuesday, Brooke Anderson, the chief national security spokeswoman for the transition, said, “President-elect Obama has repeatedly said that he believes that the legal framework at Guantánamo has failed to successfully and swiftly prosecute terrorists.”

Mr. Obama has said he intends to close Guantánamo.

In an interview, the chief military prosecutor for Guantánamo, Col. Lawrence J. Morris of the Army, said he would file new charges against Mr. Qahtani, a Saudi who was denied entry into the United States at the Orlando, Fla., airport in August 2001.

The interrogation of Mr. Qahtani, public military documents show, included prolonged isolation, sleep deprivation, forced nudity, exposure to cold, involuntary grooming as well as requiring him to dance with a male interrogator and to obey dog commands, including “stay,” “come” and “bark.”

A Pentagon inquiry in 2005 found that the methods, some of which were personally approved by Defense Secretary Donald H. Rumsfeld, were “degrading and abusive.”

Colonel Morris said prosecutors had decided there was “independent and reliable evidence” that Mr. Qahtani had been plotting with the Sept. 11 hijackers.

“His conduct is significant enough,” Colonel Morris added, “that he falls into the category of people who ought to be held accountable by being brought to trial.” The 9/11 Commission concluded that Mr. Qahtani was to have been one of the “muscle hijackers” and that the lead hijacker, Mohamed Atta, went to the Orlando airport to meet him, on Aug. 4, 2001.

Mr. Qahtani’s military defense lawyer, Lt. Col. Bryan T. Broyles of the Army, said new charges would be troubling.

Colonel Broyles said, “It speaks about the moral bankruptcy of this whole process; that there’s nothing we can do to these people that is too much, that there are no consequences for our own misconduct.”

The new charges, people involved with the prosecution said, are unlikely to include a request for execution. The charges dismissed in May sought the death penalty.

Under the military commission system, the official who dismissed the earlier charges, Susan J. Crawford, is not required to explain her decisions. Mrs. Crawford, whose title is convening authority, would again review the case before deciding whether to refer it to a military judge.

Some officials have argued that in dismissing the charges in May she may have been simply assuring that the case of Mr. Qahtani would be separated from the cases against five other detainees with whom he was originally charged last winter. Those five, including the self-described terror mastermind Khalid Shaikh Mohammed, are accused of being the top planners of the Sept. 11, 2001, attacks.

Since the election, people involved with the military commissions have been uncertain about when or whether their work might end. Mr. Obama indicated as a candidate that Guantánamo detainees should be prosecuted in existing American courts.

The commissions have been criticized as favoring military prosecutors and for permitting the use of evidence that would not be allowed in American courts, including certain types of hearsay and confessions obtained through coercion.

But Pentagon officials have pressed ahead since the election with commission cases. Colonel Morris said he also planned to file new charges soon against five other detainees that he had asked be withdrawn in October. One of those cases was against a detainee who is a former British resident, Binyam Mohamed, who also claims he was tortured.

Colonel Morris has said the charges in those cases were dismissed so that he could review the work of a military prosecutor who stepped down in September criticizing the fairness of the prosecution efforts at Guantánamo.

But some military lawyers said it appeared officials were pushing commission prosecutions ahead to complicate efforts by the Obama administration to abandon the system. “They’re trying to tie the new administration’s hands,” said Michael J. Berrigan, the deputy chief of the Pentagon’s office of Guantánamo military defense lawyers.

Colonel Morris denied that there was any political agenda. “There is not a soul who applies any kind of pressure,” he said.

Seventeen of the 250 detainees at Guantánamo are currently facing charges. Two trials have been completed, both ending with convictions.

Some defense lawyers said they were concerned that Pentagon officials would lobby Mr. Obama’s aides. Several lawyers said a high-ranking Pentagon official at the Office of Military Commissions, Brig. Gen. Thomas W. Hartmann, had recently held a session to practice a briefing that he hoped to present to Obama aides, arguing that the new administration should continue the commissions.

General Hartmann did not respond to questions about whether he had prepared such a presentation. He provided a statement: “The Office of Military Commissions stands ready to support any and all of President-elect Obama’s transition team requests.”

Military defense lawyers said they were exploring ways of asking for a suspension of further military commission proceedings until the new president made decisions about how prosecutions were to proceed.

One option, several of the lawyers said, would be for teams of defense lawyers to file briefs in military commission cases arguing that it would be an injustice for detainees to be tried in what could be the last months of a system that has provoked legal disputes for nearly seven years.

“There is a heightened level of unfairness,” said one of the military lawyers, Maj. David J. R. Frakt, “because we’re so close.”

Finally, there is a story appearing in Xinhuanet that Austria has expresseed willingness to take up to 50 Guantanamo detainees. Alas, two sources inform me that the story is completely baseless.

Entry Filed under: Bush administration, CIA, Guantanamo, Interrogation, Law, Obama administration, Psychology, Torture, Uncategorized