Psyche, Science, and Society

Case against Mohammed Jawad collapses

In a major development, it looks as if the war crimes trial against Mohammed Jawad has collapsed. Last month the Military Commissions judge threw out Jawad’s confession to Afghan authorities, ruling that it had been extracted through torture. This week the same judge threw out Jawad’s confession given to US authorities upon his being turned over to the US, ruling that the latter cobfession was the result of fear continuing from his Afghan torture:

in part because the U.S. interrogator used techniques to maintain “the shock and fearful state” associated with his arrest by Afghan police, including blindfolding him and placing a hood over his head.

“The military commission concludes the effect of the death threats which produced the accused’s first confession to the Afghan police had not dissipated by the second confession to the U.S.,” Henley wrote. “In other words, the subsequent confession was itself the product of the preceding death threats.”

According to the former prosecutor, who resigned because he felt vital information was being withheld from the defense, this ddevelopement signifies the end of the case:

“It’s not the death knell of the case _ it buries the case,” said Darrel Vandeveld, a lieutenant colonel in the Army reserves. “The commissions at this point are utterly lifeless.”

Great credit should be given to his vigorous and principled defense attorney, Maj. David Frakt, who has used every tool available to him to fight for his client and for justice and human decency.

Here is the complete AP story:

Gitmo judge tosses out detainee’s 2nd confession

By David McFadden

SAN JUAN, Puerto Rico — A U.S. military judge has blocked Pentagon prosecutors from using a Guantanamo prisoner’s statements to U.S. authorities as trial evidence, saying they were tainted by an earlier confession tortured out of the suspect by Afghan officials.

Mohammed Jawad’s confession to U.S. authorities in Afghanistan following his capture in 2002 was the last incriminating statement available to prosecutors for the Afghan’s war-crimes trial at Guantanamo Bay, his military defense attorney, Air Force Maj. David Frakt, said Thursday.

Wednesday’s dismissal of Jawad’s confession in U.S. custody decimates the government’s case against the Afghan prisoner at Guantanamo Bay, according to the former prosecutor, who quit several weeks ago in a dispute over the handling of the case.

“It’s not the death knell of the case _ it buries the case,” said Darrel Vandeveld, a lieutenant colonel in the Army reserves. “The commissions at this point are utterly lifeless.”

Jawad, now about 23, is scheduled to face trial Jan. 5 on charges that he threw a grenade that wounded two American soldiers and their Afghan interpreter. He was 16 or 17 at the time of the 2002 attack in Kabul.

The Army judge, Col. Stephen Henley, ruled last month that Jawad’s confession to Afghan police commanders and high-ranking government officials on Dec. 17, 2002 was only achieved after they threatened to kill him and his family _ a strategy that he said was intended to inflict severe pain and constituted torture.

In Wednesday’s ruling, Henley disqualified Jawad’s second confession while in U.S. custody on Dec. 17 and 18, in part because the U.S. interrogator used techniques to maintain “the shock and fearful state” associated with his arrest by Afghan police, including blindfolding him and placing a hood over his head.

“The military commission concludes the effect of the death threats which produced the accused’s first confession to the Afghan police had not dissipated by the second confession to the U.S.,” Henley wrote. “In other words, the subsequent confession was itself the product of the preceding death threats.”

Under the Military Commissions Act, which governs America’s first war-crimes trials since the World War II era, statements obtained through torture are not admissible. But some statements obtained through “coercion” may be admitted at the discretion of a military judge.

A spokesman for the Pentagon’s Office of Military Commissions, Joseph DellaVedova, said prosecution authorities could not immediately comment on Henley’s ruling.

Hina Shamsi, staff attorney with the American Civil Liberties Union, said in a statement that it would be a “tragic legacy” for the administration of U.S. President George W. Bush if Jawad’s case proceeds at Guantanamo.

November 21st, 2008

The ever rising number of child soldiers at Guantanamo

Last week the U.C. Davis Center for the Study of Human Rights in the Americas reported that, despite Defense Departmen t claims to the UN that only eight juveniles had been held at Guantanamo, the true number was at least 12 and possibly much higher. The DoD then admitted their “error” and revised their UN report Andy Worthington reports today that the true number is at least 22. Evidently no one in the Defense Department passed elementary arithmetic, or truth-telling:

Number of juveniles held at Guantanamo almost twice official Pentagon figure

By Andy Worthington

On Sunday, the Pentagon admitted that 12 juveniles — those under the age of 18 at the time their alleged crimes took place — have been held at Guantanamo Bay (as opposed to the figure of eight that was submitted to the UN in May). But a RAW STORY count, drawn from the Pentagon’s own records, reveals that the total number of juveniles held at Guantanamo is at least 22 — nearly double the official Pentagon figure.

In a submission to the 48th Session of the UN Committee on the Rights of the Child (PDF), the Pentagon claimed that it had only held eight juveniles during the life of the Guantanamo Bay prison. It acknowledged that three Afghans under the age of 16 were released in January 2004 (as reported in the New York Times), stated that another three juveniles were repatriated between 2004 and 2006 and claimed that it was only holding two prisoners who were juveniles at the time of their capture: the Canadian Omar Khadr and the Afghan Mohamed Jawad, who are both facing a trial by Military Commission. The much-criticized Commission was created by the Defense Department as part of “terror trials” conceived in the wake of the 9/11 attacks.

Last week, the Center for the Study of Human Rights in the Americas, based at the University of California, issued a report pointing out that, contrary to the Pentagon’s assertions, at least 12 prisoners were juveniles at the time of their capture. The report correctly stated that, in addition to Omar Khadr and Mohamed Jawad, Mohamed El-Gharani, a Saudi resident born to parents from Chad, was still imprisoned. Just 14 years old when he was seized in October 2001, El-Gharani had traveled to Pakistan to study information technology, but had been rounded up in a random raid on a mosque, tortured in Pakistani custody and then held in U.S. detention, first in Afghanistan, and then in Guantanamo.

The report also asserted that the Pentagon had forgotten to include Yasser Talal al-Zahrani. Al-Zahrani, a Saudi national, was 17 when he was seized in Afghanistan, andwas one of three prisoners who died in Guantanamo (apparently by committing suicide) in June 2006.

After the report was issued, the Pentagon acknowledged that it had revised its figure from eight to 12, and said it had provided a corrected submission to the United Nations. Navy Cmdr. Jeffrey Gordon claimed that the problems arose because many of the prisoners did not know their dates of birth. But as the director of the Center for the Study of Human Rights in the Americas explained the Center’s report had drawn on the Pentagon’s own sources, specifically the list of all the prisoners held at Guantanamo from January 11, 2002 until May 15, 2006, which included their names, nationalities, and dates of birth.

Close scrutiny of this list reveals that the Pentagon will need to revise its figures once more, as, by its own account, a total of 22 prisoners were juveniles at the time of capture. Moreover, contrary to the Pentagon’s account, five of these prisoners are still being held.

This imprecision seems to reflect the Pentagon’s lack of concern for whether prisoners were juvenile at the time of capture. Under the terms of Optional Protocol to the UN Convention on the Rights of the Child (on the involvement of children in armed conflict), the U.S. administration is required to promote “the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict,” but in May 2003, when the story first broke that juvenile prisoners were being held at Guantanamo, defense secretary Donald Rumsfeld told a press conference, “This constant refrain of ‘the juveniles,’ as though there’s a hundred children in there — these are not children.”

Although the three juveniles released in January 2004 were held separately from the adult population and given some educational and recreational opportunities, there is no evidence that the rest of the juveniles held at Guantanamo received any preferential treatment whatsoever. In many cases, they were subjected to the kind of chronic abuse that has earned Guantanamo (and the U.S. prisons in Afghanistan) a reputation as facilities where the use of torture was routine.

The following is a list of the 22 juveniles held at Guantanamo:

Including Omar Khadr, Mohamed Jawad and Mohammed El-Gharani, five prisoners who were juveniles at the time of capture are still being held at Guantanamo. The two not previously mentioned are:

* Faris Muslim al-Ansari, a Yemeni, was 17 when he was seized crossing the Pakistani border. In Guantanamo, he explained (PDF, pp. 128-33) that his family had left Yemen when he was a child, and had moved to Afghanistan, where his father had fought the Russians. Denying an allegation that he was a Taliban fighter, he said, “I have never done anything military-related at all, and I don’t know anything about military fighting,” and added that he fled Jalalabad, where he was living with his parents, because “The Americans would target any Arabs, not just al-Qaeda or the Taliban, and the Northern Alliance would kill any Arab they saw.”

* Hassan bin Attash, a Saudi of Yemeni descent, is the brother of a “high-value detainee” charged in connection with the 9/11 attacks, and was 16 or 17 when he was seized in Pakistan and transferred to the “Dark Prison,” a CIA prison near Kabul, which resembled a medieval dungeon, but with the addition of painfully loud music which was blasted into the cells 24 hours a day. He was then rendered to Jordan, where proxy torturers “worked on” him for 16 months. In Guantanamo, he told his lawyer that he was hung upside down, beaten and threatened with electric shocks, and added that afterwards he told his interrogators “whatever they wanted to hear.” In January 2004, he was rendered back to Afghanistan, and arrived in Guantanamo in September 2004.

In addition to the three juveniles released in January 2004 (Asadullah, Naqibullah and Mohammed Ismail), the following thirteen prisoners who were juveniles at the time of capture have also been released:

* Abdul Qudus, an Afghan, was 14 when he was sold to US forces by opportunistic Afghan soldiers. In Guantanamo, he explained (PDF, pp. 22-7) that he and Mohammed Ismail (one of the three juveniles released in January 2004) had been looking for work, and had ended up spending the night at an Afghan militia post. The following morning, the soldiers wanted to give them weapons and make them fight, and when they refused they were put in a car, delivered to the Americans, and accused of being with the Taliban. He was released in 2005 or 2006.

* Shams Ullah, an Afghan, was 15 or 16 he was seized by U.S. forces. In Guantanamo, it was alleged (PDF, pp. 71-4) that he had fired at U.S. and Afghan forces who had stopped him during a patrol. Shams had vague recollections of the events, but his uncle, Bostan Karim, who was seized separately, and is still held in Guantanamo, noted (PDF, pp. 138-50) that he had “a mental problem,” and explained, “When the Americans came to our house there was a Kalashnikov in our house and he knew that the Americans would take this gun. So, he took the gun and went to the mosque. The Americans asked him to stop and he didn’t stop, so they shot him and he became lame.” He was released in 2005 or 2006.

* Qari Esmhatulla, an Afghan, was 16 or 17 when Afghan soldiers stopped him as he walked home from visiting a shrine. In Guantanamo, he said (PDF, pp. 1-7) that he “admitted the things that were not true only to make them stop beating me,” and added, “I heard my captors talk about receiving a bounty from American forces for people they captured. They placed a grenade near me so they could have an explanation for arresting me.” He was released in October 2006.

* Peta Mohammed, an Afghan, was 17 when he was seized with two of the juvenile prisoners released in January 2004, after a raid by U.S. Special Forces on the compound of a warlord named Samoud. All were treated brutally in a U.S. base in Gardez and at Bagram, where, according to another released prisoner, Habib Rahman (PDF, pp. 84-9), they were abused until they admitted attacking U.S. forces. Mohammed was released in 2005 or 2006.

* Yousef and Abdulsalam al-Shehri, two Saudi cousins, were both 16 when they were seized in Afghanistan. Yousef was transported to a prison in Sheberghan run by Afghan warlord General Dostum, where he spent six weeks in horribly overcrowded conditions, surrounded by the dead and dying, before being transferred to U.S. custody. Abdulsalam was sent to Qala-i-Janghi, a fort run by Dostum, where several hundred prisoners were killed in bombing raids and by artillery fire after a number of them staged an uprising. The others, who hid in the basement, survived death by bombs and flooding. When asked at Guantanamo (PDF, pp. 158-66) if he took part in the uprising, Abdulsalam said, “How am I going to fight? With my fingers? I didn’t have a weapon.” He was released in June 2006 and Yousef was released in November 2007.

* Abdulrazzaq al-Sharekh, a Saudi, was 17 when he was seized after crossing the Pakistani border from Afghanistan. He had apparently been recruited to help the Taliban fight the Northern Alliance (PDF, pp. 35-42), and was released in September 2007.

* Rasul Kudayev, a former wrestling champion from the Russian territory of Kabardino-Balkaria, north of Georgia, was 17, according to the Pentagon, when he was seized in Afghanistan and imprisoned in Qala-i-Janghi. He was released in March 2004, but was arrested in October 2005, after 300 gunmen attacked government buildings in his hometown, and tortured horribly in police custody, despite protesting his innocence.

* Haji Mohammed Ayub, a Uighur (a Muslim from China’s Xinjiang province), had fled to Afghanistan to escape Chinese persecution, and was 17 when the settlement he shared with other Uighurs was bombed by U.S. forces (PDF, pp. 49-55). Seized by Pakistani villagers and sold to U.S. forces, he and four other Uighurs were released in May 2006 and sent to Albania, the only country prepared to accept them, where they have no work opportunities, and no prospect of ever being reunited with their families.

* Two Pakistanis, Mohammed Omar and Saji Ur Rahman, were, respectively, 17 and 15 years old when they were seized in Afghanistan and imprisoned in local jails for three months before being handed over (or sold) to U.S. forces. This year, they spoke to Tom Lasseter of McClatchy Newspapers (interviews here and here) as part of a survey of released prisoners, and it appeared that they had been recruited to fight, like thousands of other young Pakistanis, by militants connected to his madrassa (religious school). They were released in 2004.

In addition, two other Pakistani juveniles — Khalil Rahman Hafez and Sultan Ahmad (both 17 at the time of capture) — were released without their stories being told, and the 22nd juvenile prisoner was Yasser Talal al-Zahrani.

It remains plausible that the dates of birth of several other prisoners were recorded incorrectly by the Pentagon, and it should also be noted that Sami al-Haj, the al-Jazeera journalist released in May, told his lawyers at the legal action charity Reprieve that he believed that at least two dozen other prisoners were juveniles when they were seized.

Hundreds of juvenile prisoners are still being held in Afghanistan and Iraq. In its submission to the UN in May, the Pentagon claimed that it had held “approximately 90″ in Afghanistan since 2002, and was currently holding “approximately ten,” and had held “approximately 2,400″ in Iraq since 2003, and was currently holding “approximately 500.” If Guantanamo is anything to go by, these figures may not be reliable at all.

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Andy Worthington is the author of The Guantanamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press).

November 21st, 2008

Sullivan: No on Brennan for CIA!

Andrew Sullivan comes out strongly against John Brennan as Obama’s pick for CIA Director:

No Way. No How. No Brennan.

By Andrew Sullivan

Marc reports the Republican, former chief-of-staff for George Tenet (who authorized war crimes as CIA head), admirer of Dick Cheney, CEO of the company one of whose contract employees improperly accessed Obama’s and McCain’s passports, and defender of renditions and “enhanced interrogations” is still Obama’s front-runner pick to head the CIA. No, I’m not making this up. Brennan was high up in the agency during the run-up to the Iraq war and has since conceded this about the intelligence he was in part responsible for:

Looking back on it now, as we put pieces together, it probably is apparent to some, including Paul, that it was much more politicized than in fact we realized.

So Brennan was complicit and naive in the run-up to the Iraq war. And Obama wants to reward him? Brennan is also a believer in Cheney’s term “the dark side,” wishing merely to have some limits within it. He clearly has a mindset that has far more in common with the war crimes of his former boss than with the clear, and indisputable beliefs of the Obama movement. Listen to the ambivalence about torture here:

I think George [Tenet] had two concerns. One is to make sure that there was that legal justification, as well as protection for CIA officers who are going to be engaged in some of these things, so that they would not be then prosecuted or held liable for actions that were being directed by the administration. So we want to make sure the findings and other things were done probably with the appropriate Department of Justice review.

But at the same time, there is a question about how aggressive you want to be against terrorism in terms of, what does it mean to take the gloves off? There was a real debate within the agency, including today, about what are the minimum standards that you want to stoop to and beyond where you’re not going to go, because we don’t want to stoop to using the same types of standards that terrorists use. We are in this business, whether it be intelligence or the government, to protect freedom, democracy and liberty, not to violate that.

When it comes to individuals who are determined to destroy our nation, though, we have to make sure that we take every possible measure. It’s a tough ethical question, and it’s a question that really needs to be aired more publicly. The issue of the reported domestic spying — these are very healthy debates that need to take place. They can’t be stifled, because I think that we as a country and a society have to determine what is it we want to do, whether it be eavesdropping, whether it be taking actions against individuals who are either known or suspected to be terrorists. What length do we want to go to? What measures do we want to use? What tactics do we want to use?

Hopefully, that “dark side” is not going to be something that’s going to forever tarnish the image of the United States abroad and that we’re going to look back on this time and regret some of the things that we did, because it is not in keeping with our values. …

Sometimes there are actions that we are forced to take, but there need to be boundaries beyond which we are going to recognize that we’re not going to go because we still are Americans, and we are supposed to be representing something to people in this country and overseas. So the dark side has its limits.

The simple answer to the question – what length do we want to go? – is to abide by the rule of law. Why is that so hard to understand? And yet Brennan and Tenet didn’t. They authorized clear torture sessions. Why is such a man even considered for the post under Obama? This man cannot end the taint of Bush-Cheney. He was Bush-Cheney. In fact, if Obama picks him, it will be a vindication of the kind of ambivalence and institutional moral cowardice that made America a torturing nation. It would be an unforgivable betrayal of his supporters and his ideals. It would be an acknowledgment that Tenet himself is not a war criminal, while the facts indisputably prove that he was.

In fact, I’d like to see much more evidence of whether Brennan himself is implicated in the war crimes and unlawfulness of the past eight years. If nominated, the Senate should find out. Whatever his qualities, Brennan is not change. He has even used Tenet’s disgusting adoption of the Gestapo euphemism “enhanced interrogation.” Here he is arguing against change earlier this year:

Even though people may criticize what has happened during the two Bush administrations, there has been a fair amount of continuity. A new administration, be it Republican or Democrat — you’re going to have a fairly significant change of people involved at the senior-most levels. And I would argue for continuity in those early stages. You don’t want to whipsaw the [intelligence] community. You don’t want to presume knowledge about how things fit together and why things are being done the way they are being done. And you have to understand the implication, then, of making any major changes or redirecting things. I’m hoping there will be a number of professionals coming in who have an understanding of the evolution of the capabilities in the community over the past six years, because there is a method to how things have changed and adapted.

It’s fine not to uproot the entire agency and to have some continuity. But for Obama to appoint a Bush-Cheney apologist to the CIA? How on earth did this idea get this far?

It may be that Brennan will stop torture under any euphemism. But the trouble with this area of policy is that it is necessarily secret and so trusting the people running the CIA is essential. I don’t trust Brennan. On the question of torture, it is absolutely vital that there be a clean break with Bush-Cheney at the top of the agency. Many CIA staffers have been implicated in war crimes, and their cover-up. If you were to de-Cheneyize the entire place after eight years of entrenchment, you’d have few people with real skills left. So the top leadership is vital. It needs to signal that there is no longer any doubt that the US is abiding by Geneva, including Article 3, in all its branches of government.

The least we know is that Brennan is ambivalent about this. Ambivalence on this matter is unacceptable. We haven’t fought for decency and reform and a return to American values for so long to be turned back now. We didn’t work our butts off to elect Obama only to get Bush another four years at CIA. If Brennan emerges as the pick, those of us against the continuation of war crimes and the prosecution of war criminals will have to oppose him strenuously in the nomination process. We will, in fact, have to go to war with Obama before he even takes office.

And if Obama doubts our seriousness, I have three words for him. Yes we can.

November 21st, 2008

Glenn Greenwald on today’s habeas decision

Glenn Greenwald on today’s habeas decision:

Five detainees ordered released “forthwith” after seven years at Guantanamo

By Glenn Greenwald

(updated below)
A federal district judge, Richard Leon, today ordered the Bush administration “forthwith” to release five Algerian detainees who have been held in Guantanamo without charges since January, 2002 — almost seven full years. The decision was based on the court’s finding that there was no credible evidence that the 5 detainees intended to take up arms against the U.S. The court found sufficient evidence to justify the ongoing detention of a sixth Algerian detainee.

When they were detained in 2001 in Bosnia, the Bush administration claimed that they were plotting to bomb the U.S. embassy in Sarajevo. But once they were shipped to Guantanamo, the U.S. backed off that accusation and instead claimed they intended to travel to Afghanistan to fight against the U.S.

I don’t want to say too much about the legal reasoning behind the decision because it was just issued via an oral ruling from the bench, and I haven’t yet been able to obtain a copy of the judge’s decision. For now, then, the following can be noted about this landmark ruling — the first time a court has ruled that the Government’s evidence is insufficient to justify ongoing imprisonment of a detainee as an “enemy combatant”:

(1) These 5 detainees were able to be heard in federal court only because the U.S. Supreme Court in the Boumediene case last June — in a ruling John McCain called “one of the worst decisions in the history of this country” — struck down as unconstitutional Section 7 of the Military Commissions Act, which had purported to abolish habeas corpus for Guantanamo detainees and prohibit them from challenging their detention in a federal court. The release order today resulted from the habeas corpus right which the Military Commissions Act purported to abolish but which the Boumediene Court restored. Appropriately enough, one of the 5 detainees who won his freedom today was the named plaintiff in that case, Lakhdar Boumediene.

(2) The five men ordered released today have been imprisoned in a cage by the Bush administration for 7 straight years without being charged with any crimes and without there being any credible evidence that they did anything wrong. If the members of Congress who voted for the Military Commissions Act had their way (see them here and here), or if the four Supreme Court Justices in the Boumediene minority had theirs, the Bush administration would nonetheless have been empowered to keep them encaged indefinitely, for the rest of their lives if desired, without ever having to charge them with any crime or allow them to step foot into a courtroom to petition for habeas corpus.

In addition to every Republican Senator (except Chafee), those voting to authorize that repellent power include Jay Rockefeller, Ken Salazar, Tom Carper, Ben and Bill Nelson, Debbie Stabenow, and Joe Lieberman.

(3) Judge Leon is a Bush-43 appointed Judge known as a right-wing ideologue and known for ruling in favor of the Government and for expansive executive power. He was Deputy Chief counsel for the Republicans on the Iran-Contra Committee in 1987, was Special Counsel to the Senate Banking Committee for the Whitewater investigation, and worked for both the Reagan and Bush 41 Justice Departments. That Judge Leon — of all judges — ruled that there was no credible evidence to suggest that these detainees are “enemy combatants” is as compelling a sign as one can imagine that there is no such evidence.

Simply juxtapose that finding with the fact that these men have been imprisoned for seven straight years with no meaningful due process, and one can vividly see the grotesque injustices we have wrought with Guantanamo and our denial of basic due process to detainees. That is a stain — one of many — that will never be fully expunged.

UPDATE: Here is a gut-wrenching account of what these detainees have endured (h/t Ondelette). The Bosnian Prosecutor who investigated their initial detention back in 2001 (which was effectuated at the behest of the U.S.) concluded they ought to be released, but the Bosnian Government succumbed to the pressure of the Bush administration and turned them over to the U.S. as they were being released (“hooded, shackled, and packed into waiting cars while their horrified families watched”), after which they were shipped to Guantanamo.

One of the detainees ordered released today had a wife who was pregnant at the time he was shipped to Guantanamo, who then gave birth to a daughter, now 6, whom he has never met. Another of the Bosnian-Algerians had an infant daughter at the time he was put in Guantanamo who died last year of congenital heart disease at the age of 6. Another of them “suffered months of facial paralysis from a brutal beating inflicted by Guantanamo camp soldiers.” And then there’s this, about one of the other detainees, Saber Lahmer:

When we last saw Saber in November, he was in his sixth month of solitary confinement. Since August, he has seen us, his legal team, twice and a psychiatrist on three brief occasions. For a few minutes each day, he sees the camp guards who bring his meals. He has had no other human contact. The glaring lights in his cell are on 24 hours a day, seven days a week. When we left the cell, we could hear Saber shouting — brief, truncated cries. We could not understand what he was saying.

According to Human Rights Watch, that detainee — “a university-educated father of two who once taught at the Islamic Cultural Center in Bosnia” — “continues to be housed 22 hours a day in a single cell, with nothing to occupy his time other than his Koran” and “now reports that he is going blind in his left eye, a result that he attributes to being housed in cells with fluorescent lights on 24 hours a day.”

We haven’t just imprisoned people with no evidence in cages for years. We’ve kept them encaged under often brutal and extreme conditions, many in unbroken solitary confinement for years. Today, a federal court ruled that for 5 of these men, there is no credible evidence that they did anything wrong, and if most of our political class — which supported the Military Commissions Act– had its way, they wouldn’t have even had this hearing at all.

November 20th, 2008

Today’s landmark habeas decision for download

Here is today’s landmark Boumediene  habeas decision ordering the release of five Guantanamo detainees.

November 20th, 2008

More on ordered release of five Guantanamo detainees

I just posted on the habeas hearing in which the judge has ordered the release of five of six Algerian detainees. The New York Times now has a more detailed account:

Judge Orders Five Detainees Freed From Guantánamo

By William Glaberson

After the first hearing on the government’s evidence for holding detainees at the Guantánamo Bay detention camp, a federal judge ruled on Thursday that five of the prisoners are not being lawfully held and ordered their release.

The case, involving six Algerians detained in Bosnia in 2001, was an important test of the Bush administration’s detention policies, which critics have long argued swept up innocent men and low-level foot soldiers along with high-level and hardened terrorists.

The hearings for the Algerian men, in which all evidence was heard in proceedings closed to the public, were the first in which the Department of Justice presented its full justification for holding specific detainees since the Supreme Court ruled in June that Guantánamo detainees have a constitutional right to contest their imprisonment in habeas corpus suits.

Ruling from the bench, Judge Richard J. Leon of Federal District Court in Washington 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, an appointee of the first President Bush, had been expected to be sympathetic to the government.

The decision, lawyers said, is likely to be seen as a major judicial repudiation of the Bush administration’s effort to use the detention center at the American naval base at Guantánamo Bay, Cuba, as a way to avoid scrutiny by American judges. President-elect Obama has said he will close the prison.

Detainees’ lawyers said it was a vindication of their arguments for years. “The decision by Judge Leon lays bare the scandalous basis on which Guantánamo has been based — slim evidence of dubious quality,” Said Zachary Katznelson, legal director at Reprieve, a British legal group that represents many Guantánamo detainees. “This is a tough, no-nonsense judge.”

Because of the Bush administration’s claims that most of the evidence against the men was classified, Judge Leon ordered that, after brief opening statements on Nov. 5, the entire case was to be heard in a closed courtroom.

The government argued that the six Algerians, who were residents of Bosnia when they were first detained in 2001, were planning to go to Afghanistan to fight the United States and that one of them was a member of Al Qaeda.

The five other men include Lakhdar Boumediene, for whom the landmark Supreme Court ruling in June was named.

It was not immediately clear whether the government would appeal, but some lawyers said they considered an appeal likely.

The one detainee Judge Leon found was lawfully held was Bensayah Belkacem, who has been described by intelligence agencies as a leading Al Qaeda operative in Bosnia.

The case has become an example of the Bush administration’s pattern of changing legal strategy in its long legal war over Guantánamo, as the courts have scrutinized its justifications for its detention policies in general and its reasons for holding individual detainees.

In 2002, President Bush made the government’s allegations against the men a showcase of his administration’s anti-terrorism approach. He said in his state of the union address that the six men had been planning a bomb attack on the United States Embassy in Sarajevo, Bosnia. Last month, though, Department of Justice lawyers said they were no longer relying on those accusations to justify the men’s detention.

The habeas corpus cases have moved slowly despite the Supreme Court’s decision in June that directed federal judges in Washington to act quickly on the cases, after nearly seven years of detention for many of the 250 men still held in Guantánamo.

Another district court judge in Washington, Ricardo M. Urbina, ordered the release of 17 other detainees last month, all ethnic Uighurs from western China. But in that case, he did not hold a hearing on the evidence, because the government conceded that the men were not enemy combatants.

The Justice Department won a stay of Judge Urbina’ release order and is appealing it. Arguments in that case are scheduled for Monday in the Untied States Courts of Appeals in Washington.

Separately, this week the Justice Department filed legal motions seeking to stop more than 100 of the other Guantánamo habeas corpus cases from proceeding now, in a move that detainees lawyers said was a government effort to avoid further court scrutiny.

Department of Justice lawyers argued in motions filed Tuesday that there were flaws in the ground rules of other judges for the Guantánamo cases that would require the government, among other things, to reveal classified evidence.

Detainees’ lawyers said the ruling on Thursday by Judge Leon would indicate to other judges that they should be skeptical of the government’s efforts to delay hearings.

P. Sabin Willett, one of the lawyers for the Uighurs, said that Judge Leon’s decision “sends a powerful message to all the other judges to get these cases moving.”

J. Wells Dixon, a detainees’ lawyer at the Center for Constitutional Rights, said the ruling made clear that Guantánamo Bay had failed. But, he said, “Justice comes too late for these five men.”

November 20th, 2008

Guantanamo trials: Habeas releases and war crimes charges reinstated

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.

November 20th, 2008

New York Times archive of documents on Guantanamo detainees

The New York Times has an archive of documents (16,000 pages so far) about the 779 Guantanmo detainees, organized by detainee. The best thing is that it is searchable. Thus, one can search for “torture” and find all documents with that word in it.

Here is the Times description of the archive:

The Guantánamo Docket is an interactive database of Pentagon documents and New York Times research regarding 779 men who have been detained at Guantánamo as enemy combatants since January 2002. For the first time, these documents are organized by detainee name and are searchable.

The Pentagon has declined to release a list of the detainees currently at Guantánamo or a precise number of the remaining suspects. But by reviewing thousands of pages of government documents released in recent years, as well as court records and media reports from around the world, The Times was able to compile its own approximate list. In this database, the status determined by The Times is shown as Held, Transferred or Dead.

This database provides access to information on individual detainees from previously released Pentagon documents relating to the Combatant Status Review Tribunals and subsequent Administrative Review Boards. Additional data on individual detainees has been included to provide a fuller understanding of the past and present population of the detention center.

In March 2006, the Defense Department began to release documents from military proceedings in response to a lawsuit brought under the Freedom of Information Act by the Associated Press. These documents and other records relating to Guantánamo are posted on the Defense Department web site.

The Times will update the database with ongoing research. Watch for additional data, documents and features.

1 comment November 19th, 2008

Obama’s victory, a 16 year old Wasilla girl’s view

A 16 year old girl in the Wasilla, Alaska  area has written a moving and disturbing account of the reaction to Obama’s victory in her community. It seems to have stuck a cord as the article has over 600 comments:

Valley teen has some big questions

By Waverli Rainey

Being a Caucasian high school girl sometimes makes me forget a few things.

Sometimes it’s easy to get caught up in social life, school projects, homework, and studies.

Sometimes I can forget what America looks like. Sometimes it takes a hateful word, a racial slur, or an act of disrespect to bring me to realization and clear my eyes and see. Sometimes it takes acts and images of hate to penetrate my daily thoughts and clear my mind of its clutter.

In 1955, a Baptist preacher by the name of Martin Luther King Jr. boycotted buses because a brave black woman refused to get up and move for a white man. In 1963, people came together to march to Washington in protest of segregation; and in the shadow of the Lincoln Memorial that man uttered the words “I have a dream.” Then, on April 4, 1968, the same man was shot to death. Now on Nov. 4, 2008, Sen. Barack Obama was elected the first African-American president of the United States of America.

Nov. 4 was a momentous moment for me. I went to the Wasilla Sports Complex for what was called a community event. We were told it was non-partisan because it’s a city building. However, once inside, it seemed as if it was a Republican-only event. Despite this, we stayed. Although I am too young to vote, I sat at the Sports Complex to see who would be the new president. I felt joy as I saw Sen. Barack Obama’s electoral points grow and grow. I clapped for and was impressed by Senator McCain’s graceful speech and his call for unity and support for the new president-elect.

I anxiously awaited what Present-elect Obama would say. Between speeches, a live band played music. However, when President-elect Obama began to speak, those running the event had to be asked to have the band stop so we could hear him speak. Eventually, they stopped playing, but we missed the beginning of the speech. Then half way through this historic speech, former Mayor Keller turned down the audio of President-elect Obama and put on a call from Governor Palin. I certainly understand the desire of Valley residents to hear from the governor, but if this was a non-partisan event, I feel that interrupting the next president was disrespectful. I also feel it did not represent the coming together of America that Senator McCain had only moments before asked his supporters to do.

The event was supposed to be for all parties, for all people, but it didn’t feel like it. I was shocked and offended. The event was supposed to be for supporters of Senators Obama and McCain and no one paid respect to President-elect Obama’s historic moment. Finally, another step toward complete equality and it seemed no one cared.

So the next day I borrowed my mother’s Obama shirt and walked into school wearing my pride on my chest. Finally the campaign was over and I was actively supporting our new president, even though I knew I would be vastly out numbered at school. I expected complaints and qualms about the new president, but I was not prepared for the flat-out racist remarks said openly in the halls and classrooms. I was appalled. While I sat at my desk trying to do my work I could hear my fellow classmates:

“I think we should kill Obama,” one said.

“I hope someone comes up and shoots him in the head,” another would say.

“I hate Obama … he’s black.”

On went the racist words for the full 80 minutes of that class. Angered, I began to think of the injustice of it all and the ignorance of the students I was surrounded by. I wondered where they learned to be so hateful, and I wondered why the teacher never stepped in – why no adult, no student, including myself, had the guts to cut in and say it was not OK. Because it’s never OK for intolerance. It is never OK to cut someone down and dehumanize them because they do not look like you, or think like you, or talk like you, or worship the way you do.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

All men are created equal. All men. That does not mean only if you’re the same color as me, think like me, talk like me, or worship who or how I do. It means regardless of age, gender, race, political affiliation, sexual orientation, or religion – we all have the right to life, liberty and happiness. Guilt does not follow race. All Arab-Americans are not Muslim extremists; being Arab-American simply means their family came from a certain part of the world. All Asian-Americans are not all like Kim Il-sung; Asian-Americans come from countries like China, Thailand, Japan, Taiwan and Singapore and they are not all the same. All African-Americans are not guilty of the genocide seen in places like Rwanda and Kenya.

If we were all guilty of the sins of our race, then what am I — a Caucasian high school sophomore from Palmer, Alaska — guilty of? Am I guilty of stealing land from their Native owners? Am I guilty of enslaving Africans? Am I guilty of the slaughter of entire races of people? Am I guilty of imprisoning Chinese and Japanese in American interment camps?

As a Causation high school girl, it’s easy to forget things like in America you wear a color — often called black, or white, or yellow, or red, or brown. We do not pick our name or race — we’re not chameleons who can change color at will, it’s how we’re born and raised. Being African-American, or Latino, or Asian-American, or Native American, or Alaska Native, or Arab-American is not a crime. Being Christian, Jewish, Muslim, Buddhist, Hindu, atheist, or agnostic is not a crime. Wearing a burqa on your head, or glasses on your face, or studying all views of the world and seeing the flaws of all governments is not a crime.

Sometimes I think of a place where all of our languages are mashed together, singing of our own multi-heritage pride; the pride of a truly unified America. A place where we can be proud of our accents because this is how American English sounds, too. A place where there is no more White Power! or Black Power! Where it’s American Power! Or better yet, where it’s Human Power! A place that proudly conjures images of colonists throwing tea into a harbor, Martin Luther King Jr. standing on the steps of Lincoln Memorial, and immigrants working hard to achieve their American dream all at the same time. We are the story of our culture and colors and I’d like us all to take pride in it.

I long for the day when the word American doesn’t bring the world to think only of a white high school football star, but also brings images of each of us as we are. This America would look like both a short blond girl with glasses, and like the son of a Kenyan father and a Kansas mother who was raised by his grandparents — a day when an American looks like ourselves — looks like us as individuals and at the same time as a community of all races and all people.

Waverli Rainey is a 16-year-old born and raised in the Mat-Su Valley.

November 19th, 2008

Ghoul’s Glossary: Vice President

From Juan Cole:

Ghoul’s Glossary: Vice President

Vice President: n. Political chief in charge of committing vice.

The official can fulfill his public duties by committing a wide range of sins or crimes, including murder and treason (see Burr, Aaron and Breckenridge, John). Lazier and greedier incumbents have satisfied themselves with mere extortion, tax evasion, bribery, and conspiracy (see Agnew, Spiro). Energetic and conscientious vice presidents have engaged in the whole range of vice, including subverting the constitution, committing war crimes, engaging in treason through betrayal of covert intelligence operatives, or owning shares in abusive private prisons. (See Cheney, Richard Bruce). Some holders of the office have misunderstood its requirements, neglecting to distinguish themselves by any form of criminality and so dooming themselves to complete oblivion rather than the profound obscurity that is generally granted their more venal counterparts.

November 19th, 2008