Guantánamo 9 years on

Today, January 11, 2011, marks the ninth year of the existence of the detention center (left) at the U.S. Naval Base at Guantánamo Bay, Cuba.
Translate that to measure the effect on human beings. What this means is that scores of men have been detained by the United States for nine years now, in prison-like conditions, without trial.
Detention for nine years without trial.
If I appear impassioned, forgive me. But, yours truly has represented Guantánamo detainees for close to nine years—almost as long as the detention camp has been around. Over the years, I have:
► Played a direct role in the litigation journey that ended in the U.S. Supreme Court judgment in Boumediene v. Bush (2008) (prior posts).
► Seen several bills pass in attempt to restrict the rights of the detainees.
► Seen numerous military commissions start and stop. Child soldier Omar Khadr (right), whom I represented for a short time, has faced no fewer than three different military commissions, operating under different rules.
► Seen my clients on hunger strike. And I heard from my fellow habeas counsel the stories of attempted suicides, successful suicides and whispers of homicide. In total, six men have died in custody.
A lot has happened in these last nine years, though for the detainees there, frankly, too little has happened. In those circumstances nine years can seem like a lifetime. And for some of those men, detention at Guantánamo may be a lifetime.
This brings us to the current state of Guantánamo and the detainees.
Of the original 779 detainees, 599 have been released, but 173 men remain in the detention camp. Despite the executive order issued by President Obama in January 2009 that calls for the closure of the detention camp within a year, which I wrote about here, Guantánamo remains open. And as posted by IntLawGrrl Diane Marie Amann this weekend, the most recent piece of legislation signed into law just a few days ago—The National Defense Authorization Act for 2011—makes it clear that closing Guantánamo will be very difficult. This Act:
► Prohibits the use of funds authorized by the bill for the transfer or release to the United States (or any U.S territory or possession) of Guantánamo detainees, including 9/11 defendant Khalid Sheikh Mohammed, who is specifically named.
► Requires certification from a foreign country regarding the transfer of Guantánamo detainees to that foreign country. The country must certify, among other items, that it: is not a sponsor of terrorism; maintains control over the detention facility; has agreed to take steps to ensure the individual won’t take action to threaten the U.S.; and has agreed to share information with the U.S. regarding the individual.
► Prohibits the use of funds authorized by the bill to modify or construct facilities in the U.S. to house detainees from Guantánamo for detention or imprisonment in the custody of the Department of Defense.
On Friday, January 7, President Obama signed the bill into law but issued a signing statement that specifically address two of the provisions relating to Guantánamo: the restriction on transfer into the U.S. and the certification requirement from foreign countries. (photo credit) Some criticized it as weak. But as Diane's post observed, the signing statement includes a pretty clear denouncement of Congress’ attempt to intrude on executive prerogative. Obama wrote:

'Section 1032 represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests. The prosecution of terrorists in Federal court is a powerful tool in our efforts to protect the Nation and must be among the options available to us. Any attempt to deprive the executive branch of that tool undermines our Nation's counterterrorism efforts and has the potential to harm our national security.'

President Obama also stated that his administration would

'work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.'

The confrontation between the two branches is certainly interesting, and will require a watchful eye as to exactly how the administration will work with a new Congress that now has a Republican majority in the House.

A more interesting and disheartening development, I believe, are reports of a pending executive order on indefinite detention.

On Sunday, Laurie Blank contributed an IntLawGrrls guest post criticizing such an attempt to routinize indefinite detention. Also well worth reading is the extended article by Dafna Linzer (right), a ProPublica national security reporter, available here. (credit for photo by Lars Klove)

According to Linzer, the White House has been busy for over a year preparing an executive order that sets forth a system for indefinite detention. This system would enable detainees to challenge their detention on a regular basis by requiring a minimal review every six months and then a more lengthy annual review before a ‘parole-like’ board made up of officials from civilian and military agencies. Further, detainees would have access to an attorney to assist them in the process. This review would not replace the court habeas review required by Boumediene, but would supplement it. In essence, the executive review would weigh the necessity of the detention, rather than its lawfulness. The ‘parole board’ would have the authority to release the detainee if appropriate.

The National Defense law just enacted, however, with its severe restrictions on transfer to third countries, would fairly undermine this assertion of executive authority.
In the end:

There are still men at Guantánamo, who by either court order or executive determination (recall the Guantanamo Review Task Force Report that identified approximately 50 men who could neither be tried or released), will continue to be detained without trial either at Guantánamo or elsewhere.

It has already been nine years of detention for the men at Guantánamo, and recent events only confirm that indefinite detention may very well be a reality for some of these men. Equally disturbing, it may very well be a permanent part of our democratic society.

Which GTMO trial plan best serves U.S. legal tradition? U.S. legal tradition.

U.S. Senator Dianne Feinstein (D-Cal.) (right), Chairman of the Select Committee on Intelligence, has voiced her strong support for trying suspected terrorists in federal courts, before civilian judges sitting in courthouses located in the country's 50 states.
Feinstein's op-ed in yesterday's Los Angeles Times adopted an almost mocking tone, concluding its listing of "the flurry of guilty pleas this year by high-profile terror suspects," who "now face maximum terms of life in federal prison -- where there is no possibility of parole," with this:

So much for the claim that our federal courts aren't up to the job.

The op-ed went on to cite statistics demonstrating the efficiency of these courts, which have concluded cases involving more than 400 terrorism suspects in the last 8 years. That's quite in contrast with the military commissions at Guantánamo:

Since 9/11, only four Guantanamo detainees have been prosecuted in military commissions. Two of them received light sentences and are now free.

In the view of Feinstein, who 3 years ago advocated transferring all detainees stateside and trying them before "a regularly-constituted court," the "lopsided statistics" mean that, almost always, civilian federal courts are to be favored.
This new avowal of support for the decades-old American tradition with regard to terror cases is much needed.
Feinstein's op-ed alluded to an absence of current debate. Curious, given the publication of 2 Washington Post op-eds on the issue in the last 5 days. Both advocated positions to the right of Feinstein:
► On the same day Feinstein published in the Times, the man whom she helped to confirm as Attorney General in 2007, Michael B. Mukasey (left) (prior IntLawGrrls posts), came out hard against another proposal to try all GTMO suspects before Article III judges. (He himself once was a life-tenured judge in accordance with Article III of the U.S. Constitution, serving on the U.S. District Court for the Southern District of New York from 1987 to 2006). Mukasey contended that such trials would: not jibe with the constitutional requisite of a jury trial; violate "'the rule of law'" as codified in the Military Commissions Act of 2006; and impose on prosecutors undesirable evidentiary burdens.
Mukasey's op-ed seemed to accept that the GTMO commissions have had "mixed results," attributing this

to military courts' unfamiliarity with the conventions of conspiracy law, which appears to account, for example, for the finding that Osama bin Laden's driver was not substantially blameworthy even though he bore principal responsibility for bin Laden's physical safety and, like those who serve similiar functions for organized crime bosses, had to have been among his most trusted aides.

Not only does this assessment run counter to evidence at the GTMO trial of that driver, Salim Ahmed Hamdan, but it also fails to note that in view of 4 Justices of the U.S. Supreme Court in Hamdan v. Rumsfeld (2006), conspiracy is not a lawful charge. An equal number of Justices disagreed. Justice Anthony M. Kennedy reserved decision, leaving the question wide open as a matter of U.S. law (far less so as a matter of the international law of war, whose tradition does not recognize the charge).
Mukasey concluded by extolling military commissions proceedings at Guantánamo as "remote, secure, and humane," with security "unparalleled anywhere on the mainland," and an "elaborate press gallery." (My own December 2008 observations on same were rather different; see here and p. 9 here.)
► What provoked Mukasey's ire was not a call to close GTMO, but rather a bid to bestow on that Cuba-based naval base its own federal court.
The title of last Friday's Post op-ed said it all: Try Sept. 11 suspects in the U.S. District Court for Guantanamo. Each of its 2 authors is a former judge: Eugene R. Sullivan (near right), Chief Judge of the U.S. Court of Appeals for the Armed Forces, an Article I court (from 1990 to 1995), and Louis J. Freeh (far right), like Mukasey once an Article III judge in Manhattan and, more recently, Director of the Federal Bureau of Investigation (1993-2001).
The authors of this op-ed applauded the Obama Administration decision to seek a federal district court trial for Khalid Sheikh Mohammed and 4 other Guantánamo detainees charged in connection with the attacks of September 11, 2001. But they contended that holding the trials Stateside "is no longer an option for a host of political and practical reasons," adding that the GTMO commissions "are fatally flawed." Hence, their idea: cast a statutory net to include the base within a jurisdictional map of Manhattan, traditional home of S.D.N.Y., just as farflung sites like Wake Island are deemed part of the District of Hawaii. Or create a new D.GTMO. Sullivan and Freeh foresaw "immense benefit" from this hybrid.
The best choice?
None of the above.
► Mukasey simply seeks More Of The Same. More confusion about critical issues like availability vel non of the death penalty, still, as Attorney General Eric Holder recognized, a question mark in any military commission proceeding against KSM et al. More escalation in cost, more inconvenience to counsel, more keeping of the public from full access to the proceedings. More boycotts like that just announced by Omar Khadr. More litigation of every aspect of every proceeding.
Mukasey's mind-boggling idea for yet another newfangled court, "perhaps presided over by Article III judges but with juries drawn from the military," surely would set off even More.
► Sullivan and Freeh would supplant one practical/political challenge with another that has little to commend it.
Put to one side the oddity of Congress sending appeals from GTMO trials to the federal appellate court in New York even though appeals from GTMO habeas now go to its counterpart in Washington. Put aside too that D.GTMO would be no less costly nor inconvenient than the current system. (The authors envisioned "impaneling an anonymous jury in Manhattan and transporting the jurors to Guantanamo Bay for service.")
Consider only the import of such an innovation.
For the 1st time in U.S. history, an Article III court would have its permanent seat in an armed camp. Public oversight would be subject to Defense Department edict -- as, controversially, it is now. Not just jurors but all participants -- even judges -- would effectively be sequestered. The risk is evident that such circumstances would so tip the balance as to preclude fully fair trials. And given the ostensible justification -- stated fears of trying these particular defendants on American soil -- the changes would undermine the authority and legitimacy of all federal courts in the United States.
► Feinstein's op-ed demonstrated that those courts well deserve the authority and legitimacy they have earned over the course of 2 American centuries. Yet it also falls short, for it allows that some detainees yet might be tried before military commissions. Leaving the GTMO courtroom door even a bit ajar creates a foothold for proposals like those in the other op-eds.
Meanwhile, persons captured as many as 8 years ago remain in an offshore site of U.S. military power, uncharged and untried, the crimes attributed to them unresolved.
That result is not fair. Not fair to detainees, not fair to victims and their loved ones, not fair to the public at large.
The time is well passed to treat the terrorism suspects of today by the same processes that the likes of Ramzi Yousef, Omar Abdel Rahman, and Manuel Noriega have faced.
It is time to return without exception to American legal tradition.

On April 22

On this day in ...
... 2005 (5 years ago today), Zacarias Moussaoui pleaded guilty to participation in an al Qaeda conspiracy connected with the terrorist attacks of September 11, 2001. This January, the U.S. Court of Appeals for the 4th Circuit affirmed the conviction-by-plea and consequent sentence to life imprisonment, which Moussaoui (left) is serving at the U.S. "Supermax" prison near Florence, Colorado. Meanwhile. as yet untried, Khalid Sheikh Mohammed (prior posts) and other alleged participants in the 9/11 attacks, all detained at Guantánamo.

(Prior April 22 posts are here, here, and here)

They're back

President Barack Obama has revived the military commissions at Guantánamo Bay, Cuba.
He issued this statement yesterday:

Military commissions have a long tradition in the United States. They are appropriate for trying enemies who violate the laws of war, provided that they are properly structured and administered. In the past, I have supported the use of military commissions as one avenue to try detainees, in addition to prosecution in Article III courts. In 2006, I voted in favor of the use of military commissions. But I objected strongly to the Military Commissions Act that was drafted by the Bush Administration and passed by Congress because it failed to establish a legitimate legal framework and undermined our capability to ensure swift and certain justice against those detainees that we were holding at the time. Indeed, the system of Military Commissions at Guantanamo Bay had only succeeded in prosecuting three suspected terrorists in more than seven years.
Today, the Department of Defense will be seeking additional continuances in several pending military commission proceedings. We will seek more time to allow us time to reform the military commission process. The Secretary of Defense will notify the Congress of several changes to the rules governing the commissions. The rule changes will ensure that: First, statements that have been obtained from detainees using cruel, inhuman and degrading interrogation methods will no longer be admitted as evidence at trial. Second, the use of hearsay will be limited, so that the burden will no longer be on the party who objects to hearsay to disprove its reliability. Third, the accused will have greater latitude in selecting their counsel. Fourth, basic protections will be provided for those who refuse to testify. And fifth, military commission judges may establish the jurisdiction of their own courts.
These reforms will begin to restore the Commissions as a legitimate forum for prosecution, while bringing them in line with the rule of law. In addition, we will work with the Congress on additional reforms that will permit commissions to prosecute terrorists effectively and be an avenue, along with federal prosecutions in Article III courts, for administering justice. This is the best way to protect our country, while upholding our deeply held values.

(image credit)

Sure to draw fire, the decision provokes these initial thoughts:
Military commissions are not per se illegal. The United States has resorted to them on occasion since the days of its Revolutionary War against England. Nor does international law contain any blanket prohibition on such tribunals.

Yet tribunals of exception give rise to concern, under the laws of the United States no less than under international law, for reasons like these:

► Such tribunals tend to be set up in times of crisis, when there exists a perceived need to deny certain rights to the accused.

► Frequently, denial of rights occurs at a time when some in the society maintain that the particular accused do not deserve all the rights required under ordinary law.

► Whereas the ordinary criminal justice system has been tested over time -- has learned to accommodate the rights of the accused and the demands of public safety -- the fact that the tribunal of exception is an untried system makes it inevitable that unanticipated difficulties will occur, thus requiring improvised responses that themselves may give rise to new difficulties.

This combination of factors enhances the risk of miscarriage of justice. The point was made, to cite one example, by those Justices who dissented from the Supreme Court's decision in In re Yamashita (1946), which upheld the capital conviction by military commission of a former Japanese general.

Many of these risk-of-miscarriage factors, moreover, have been evident at the GTMO commissions:

► President George W. Bush ordered them established fewer than 2 months after the terrorist attacks of September 11, 2001, in a Presidential military order that asserted, without demonstrating, that due process corners had to be cut.

► Abandoning any presumption of innocence, administration officials and many others made clear their view that in any event these defendants deserved few rights. To quote an example at page 268 of my 2004 article, Guantánamo:

Vice President Dick Cheney elaborated, saying that the detainees "'don’t deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process.'"

► A glaring example of the inherent deficiency of untried systems occurred at the pretrial hearing in Khalid Sheikh Mohammed et al. that I attended last December at Guantánamo. (Prior posts here, here, and here.) As I related in an op-ed published that week, defendants, charged with responsibility for 9/11, told the judge they wanted to "confess." But proceedings had to be continued when it became clear that no one -- not the judge, not the lawyers, and surely not the defendants -- knew whether someone charged with a capital crime may plead guilty before the military commission and still face the death penalty. The question remains open today, fully 8-1/2 years since President Bush ordered establishment of the commissions.

President Obama's statement promises to avoid risks of miscarriage of justice, primarily by increasing the rights conferred upon detainee-defendants. The 5 reforms listed in the statement are moves in the right direction, though the degree to which the new commissions meet prevailing due process standards cannot be assessed properly till the new rules are published.

Surely deserving particular praise is reform No. 1. It appears to conform evidentiary practice in the military commissions to prevailing legal standards; that is, to ban from trial statements obtained from detainees not only by torture per se, but also by interrogation methods that, though they fall may not qualify as torture, are nonetheless cruel, inhuman or degrading. Omission of such statements eliminates a category of proof that was both legally objectionable and objectively unreliable.

It seems far better to resolve the 20 or so cases reportedly destined for trial at Guantánamo by fair commissions, moreover, than to establish, just because of 20 hard cases, a permanent National Security Court.

Even so:

That this statement initiates yet another retooling of a demonstrably flawed system means that the risks of missteps, of unintended consequences, again has been increased. That fact, coupled with the decision to continue proceedings at a remote location inaccessible to all but a few, no doubt will compromise claims of fairness and legitimacy of these trials.

Beverly Eckert

A disturbing memory from my week at Guantánamo was the "victims' screen," the blue curtain that the government drew to set relatives of 9/11 victims apart from the rest of us seated in the glassed-gallery. That act of segregation carried an implication -- incredible and incorrect -- that the press and those who pressed for human rights somehow stood in opposition to persons who suffered from the attacks of September 11, 2001. Some of those relatives said they were struck by "the rights accorded the accused men" in the military commission hearing in Khalid Sheikh Mohammed et al. that the government had flown them to Gitmo to attend.

Two days afterward, 31 relatives criticized the military commissions as unfair. They signed a letter stating:

While we support everyone's right to their individual opinions about these proceedings, including, of course, other family members who have suffered the
devastation we have, we also feel obliged to make clear that many of us do not believe these military commissions to be fair, in accordance with American values, or capable of achieving the justice that 9/11 family members and all Americans deserve.
We believe that the secretive and unconstitutional nature of these proceedings deprive us of the right to know the full truth about what happened on 9/11. These prosecutions have been politically motivated from the start, are designed to ensure quick convictions at the expense of due process and transparency, and are structured to prevent the revelation of abusive interrogations and torture engaged in by the U.S. government. Unfortunately, any verdict borne of these proceedings will lack legitimacy and leave us wondering if true justice has been served. No comfort or closure can come from military commissions that ignore the rule of law and stain America's reputation at home and abroad.
We are strongly encouraged by the incoming administration's promise to end this shameful system, and we are hopeful for a fresh start for these and all other Guantánamo prosecutions in U.S. courts worthy of American justice. It is time for our nation to stop betraying its own values – and the values of so many who died on 9/11.

Among those who showed the courage not to condone certain acts of her government was Beverly Eckert (above) of Stamford, Connecticut, widow of Sean Rooney, who'd died at the World Trade Center. Earlier Eckert, 57, had helped to push for the 9/11 Commission. She died in a plane crash near Buffalo on Thursday.

GTMO present

The world waits to see if detention at Guantánamo will end once Barack Obama takes the Presidential oath at high noon tomorrow. Media are rife with queries and commentaries on same -- among them IntLawGrrls' prior Guantánamo posts and a couple that I wrote last week here and here. This post offers my own glimpses of the naval base as it has been post-9/11 and, for at least a few days more, still is.
At this writing I imagine that a new crew of reporters, lawyers, and NGO observers has crossed choppy water in vessels called "vipers" -- envision very sleek, very fast versions of the boat in the movie "The African Queen" -- to "Camp Justice." Why? Today's pretrial hearing in the case of Omar Khadr, the best-known among the alleged-child-soldier cases pending before GTMO military commissions. Trial of the Canadian-born Khadr, 15 at arrest (right) and now 22, is set for next Monday. (Carol J. Williams' excellent Los Angeles Times article on the law of Khadr's case is here.)
Camp Justice is the name given to a cluster of quonset-like tents (below left) and tiny trailers. It's situated on the tarmac of an abandoned airfield on the windward side of a base that sprawls for 45 square miles, twice the size of Manhattan. This cluster stands next to the walls and razor wire surrounding a new and hypersecure court complex. On a hill sits a much older courthouse. Farther away lie camps that, as of Saturday, still hold 244 noncitizens seized as terrorism suspects. Farther yet is the compound of cages into which the 1st detainees were put. Now closed, that Camp X-Ray compound crumbles beneath creeping vines, yet remains intact by order of a U.S. court that's hearing challenges to detention.
Camp Justice is the place where last month another such crew -- among them myself, observing on behalf of the National Institute of Military Justice -- was installed. We were there for proceedings in Khadr, which took place in the hilltop courthouse, and, in the new courtroom, in Khalid Sheikh Mohammed et al., the 9/11 case about which I wrote here.
Ever escorted, on occasion we NGO observers ventured elsewhere on the base. There's the outdoor Starbucks, the Subway nestled next to the NEX, or Navy Exchange, a supermarket that offers most of the foods and otherstuffs found at any neighborhood SuperTarget, and, at night, a dim room lined with barstools and booths that bills itself "the only Irish pub on Communist soil." No off-base adventures, neither for us nor for anyone but the 3 aging men who for a half-century have done the daily commute to and from homes in Cuba to work at GTMO. On account of the border, or "fence line," that separates the U.S. base from the rest of Cuban soil, GTMO's isolation is palpable.
It is an otherworldly place, where a beautiful natural landscape has given way both to the banality of government-issue structures and the brutality that the government itself admits occurred within prison walls. Eerily unfamiliar are elsewhere-familiar offerings like premium coffee. Odder still is GTMO kitsch, T-shirts, toys, and trinkets like those at top. It's the kind of stuff found in any souvenir shop anywhere -- even, oddly, in the few such shops scattered about this near-yet-far outpost of U.S. power.

Just back from GTMO ...

... where I spent last week observing the military commission proceedings in Khalid Sheikh Mohammed et al., the 9/11 case, and in Khadr, the case about which Naomi Norberg posted yesterday. I was an NGO observer for the National Institute of Military Justice, on whose Board of Advisors I serve.

My Miami Herald op-ed on the strange turn of events in the 1st case may be found here, and a Washington Post quote from me on same may be found here.

Hope to post more on this extraordinary visit in due course.

Surreal self-representation in Gitmo

Four of five men accused of masterminding the September 11 attacks in the US, among them Walid bin Attash and Khalid Sheikh Mohammed (prior IntLawGrrls posts here), are insisting on representing themselves (Gitmo military commissions building at right). Practical obstacles and exchanges with the judge, former military-commission critic Col. Ralph H. Kohlmann, make for surreal reading. For example, Attash's hearing was stopped before it began when he explained his inability to respond to a court filing: he'd only just been given it, while handcuffed and unable to read it. After a recess during which he read the filing, Attash asked why he couldn't read the classified reports necessary to prepare his defense, pointing out that the execution that likely awaited him and his co-accused would protect the evidence better than anything else. Answer: "you don't have the necessary security clearance." Another defendant, Ammar al-Baluchi, had written a legal motion and 2 letters to the judge, who never received them (defense lawyers have been saying for some time that detainees' communications are routinely censored, delayed or blocked entirely). But at least Baluchi had access to paper! Mohammed was told paper was unauthorized, so couldn't even begin drafting a motion. Judge Kohlman didn't seem to notice the catch-22 in his solution: since procedures must be followed even to obtain paper, the defendant will have to...file a motion.

News from Guantánamo

IntLawGrrls have posted often on matters related to Guantánamo, but we've not checked in recently. So here's a roundup of what's been happening:

Detainees Arraigned in Military Commissions

On Thursday, June 5, Khalid Sheikh Mohammed and four other detainees were arraigned before the military commissions at the Guantánamo Detention Center for their alleged participation in the September 11, 2001, attacks on the United States. The prosecution seeks the death penalty on the charges, which include conspiracy, murder in violation of war, attacking civilians, and material support for terrorism. The five detainees were among twelve detainees who had been held in secret CIA "black sites" prior to their transfer to Guantánamo in September 2006. U.S. government officials have admitted to waterboarding Mohammed while in secret custody; the other four arraigned detainees were also subject to torture and coercive interrogation techniques, including sleep deprivation, stress positions and forced nudity. The arraignment marks the first public glimpse of the alleged "masterminds" of 9/11 and over fifty members of the domestic and international media were permitted to view the proceeding, which was characterized by long conversation between the five detainees, much to the concern of defense counsel who believe the judge let the conversation inhibit the voluntary choice of legal counsel. Army Major. Jon Jackson, who represents one of the detainees, testified that his client, Mustafa Ahmad al-Hawsawi, had clearly been "intimidated" and pressured by Mohammed to disavow his military attorney and to represent himself. Judge Ralph Kohlmann, who had previously denied all defense requests to delay the arraignment, postponed ruling on al-Hawsawi's and another detainee's requests to represent themselves, but ruled that the other three detainees had "knowingly and voluntarily" refused legal counsel. (credit for above photo of Gitmo courtroom)

Military Commissions Judge Steps Down

Military Judge Peter E. Brownback III, who has been presiding over the commission case of Omar Khadr (the young Canadian alleged to have killed an American soldier in Afghanistan; prior posts here), stepped down and will be replaced by Col. Patrick Parrish. The Pentagon has not explained the reason behind the move. Judge Brownback had threatened to halt proceedings if the prosecution failed to release Khadr's detention records. He also had resisted setting a trial date until the classified prison log, which allegedly demonstrates that Khadr was abused and coerced into making incriminating statements, is provided to the defense. Brownback's rulings have not always been in favor of Khadr, however; for example, he declined to apply child soldier status to Khadr. But defense counsel felt that Judge Brownback was fair and was making an effort to make the process fair despite the severe shortcomings of the commission system.

Canada's High Court Denounces Guantánamo Detentions

On a related topic, in a case originally brought by Omar Khadr in the Canadian court system, on May 23 the Supreme Court of Canada unanimously ruled that the detention and interrogation of Omar Khadr at Guantanamo violated U.S. domestic law and international human rights obligations to which Canada is a party, and thus required Canada to disclose to Khadr certain documents in its possession. Disagreeing with the Canadian government, the Court concluded that the Canadian Charter of Rights and Freedoms did apply at Guantanamo. The Canadian Court found that because the U.S. Supreme Court had already ruled in Rasul v. Bush (2004) and Hamdan v. Rumsfeld (2006) that the detentions violated U.S. domestic law and international law. Thus it wrote in paragraph 24 that the principles of comity, which would normally justify deference to foreign laws and might preclude application of the Charter, do not apply in the case:

'The violations of human rights identified by the United States Supreme Court are sufficient to permit us to conclude that the regime providing for the detention and trial of Mr. Khadr at the time of the CSIS interviews constituted a clear violation of fundamental human rights protected by international law.'

Under section 7 of the Charter, which states that "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice," the Canadian government was required to disclose to Khadr's counsel records of interviews and information given to U.S. authorities by Canadian officials who interrogated Omar Khadr at Guantánamo. The Court based its decision on the principles articulated by the Stinchcombe case, which held that persons whose liberty is a risk as a result of being charged with a criminal offence are entitled to disclosure of the information in the hands of the Crown under section 7 of the Charter. The Court also held that its ruling did not necessarily mean that Khadr and his attorneys were entitled to unredacted copies of all documents. The trial judge presiding would review the materials and decide which documents fall within the scope of the disclosure obligation.

News from Guantánamo

A roundup of what's up with cases arising out of Gitmo:
Gates v Bismullah
In an attempt to limit the information it must provide the D.C. Circuit Court when the court reviews an enemy combatant determination of a Guantanamo detainee under The Detainee Treatment Act, the government filed a petition for certiorari with the U.S. Supreme Court appealing the Circuit Court’s decision to deny rehearing en banc of its initial decision that the court must review all of the evidence regarding a detainee’s enemy combatant status and not just the evidence presented to the Combatant Status Review Tribunal as proposed by the government. After the denial, the government requested a stay of the court’s decision and filed the cert. petition, requesting SCOTUS to either accept the case with expedited review or defer action until the Court ruled on the Al Odah/Boumediene case, which has been pending since the Court heard oral arguments on December 5, 2007.

The Military Commissions
In the case of USA v Omar Khadr, the defense recently had several pre-trial motions denied by military judge Peter Brownback. Most significant was a motion to dismiss the charges and specifications on the grounds that the Military Commissions Act of 2006 is a Bill of Attainder -- prohibited by Art. I, § 9(3) of the U.S. Constitution -- for the reason that the Act essentially legislates punishment without trial. Judge Brownback disagreed, notwithstanding the fact the military commissions trials have been called a sham, rigged and unjust by defense JAG attorneys, and more recently characterized as ‘politicized’ by former military commissions prosecutor Colonel Morris "Moe" Davis. Davis, who quit the prosecutor's post a few months ago, has just announced that he will testify on behalf of a Gitmo detainee. Explaining his departure, Colonel Davis stated, “I concluded that full, fair and open trials were not possible under the current system.” And as posted, the Colonel reminded a couple weeks ago that Brigadier General Thomas Hartmann, legal adviser for the military commissions, refuses to rule out using evidence obtained by waterboarding.
In light of these circumstances, even the most hardened tough-on-crime conservative should be concerned about the recent swearing of charges against the ‘high-value six’ detainees, which includes Khalid Sheik Mohammed and Mohamed al Kahtani. The six are being charged with numerous crimes the government alleges are war crimes based in part on conduct that occurred well before 9/11. The government seeks the death penalty. Apparently, the government has already forgotten the decision of the Supreme Court in Hamdan, which holds that a precondition for a military tribunal’s exercise of jurisdiction is that ‘it is limited to trying offenses committed within the convening commanders field of command, within the theater of war and that the offense charged must have been committed during, not before or after the war.’

Now, I have no sympathy for terrorists and I am not opposed to military tribunals when imbued with due process. But how can anything good come of trying an individual in a ‘politicized’ ‘sham trial,’ for faux war crimes, on the basis of evidence procured by torture, in front of a tribunal that is all but ordered to obtain convictions, and then executing him?

Oh, and did I mention that such trials would be a gross violation of international law?

(photo from Camp Delta, Guantánamo Bay, courtesy of Center for Constitutional Rights)

Wishing KSM's fate on others

No less than one on which we posted back in May, last night's GOP presidential debate revealed much about candidates' views on how the United States ought to combat terrorism. Most notable was this exchange (video here), among moderator Anderson Cooper and 2 candidates, Gov. Mitt Romney (below right) and Sen. John McCain (bottom right), which ensued after a college student noted McCain's opposition to waterboarding and then asked, "[C]onsidering that Mr. McCain is the only one with any firsthand knowledge on the subject, how can those of you sharing the stage with him disagree with his position?"

ROMNEY: Well, he certainly is an expert and I certainly would want to get his counsel on a matter of this nature, but I do not believe that as a presidential candidate, it is wise for us to describe precisely what techniques we will use in interrogating people.
I oppose torture. I would not be in favor of torture in any way, shape or form.
COOPER: Is waterboarding torture?
ROMNEY: And as I just said, as a presidential candidate, I don't think it's wise for us to describe specifically which measures we would and would not use.
And that is something which I would want to receive the counsel not only of Senator McCain, but of a lot of other people.
And there are people who, for many, many years get the information we need to make sure that we protect our country.
And, by the way, I want to make sure these folks are kept at Guantanamo.
I don't want the people that are carrying out attacks on this country to be brought into our jail system and be given legal representation in this country.
I want to make sure that what happened ...
(Applause)
... to Khalid Sheikh Mohammed happens to other people who are terrorists. He was captured. He was the so-called mastermind of the 9/11 tragedy. And he turned to his captors and he said, "I'll see you in New York with my lawyers." I presume ACLU lawyers.
(Laughter)
Well, that's not what happened. He went to Guantanamo and he met G.I.s and CIA interrogators. And that's just exactly how it ought to be.
(Applause)
COOPER: Senator McCain?
(Crosstalk)
(Unknown): There were reports Khalid Sheikh Mohammed was waterboarded.
McCAIN: Well, governor, I'm astonished that you haven't found out what waterboarding is.
ROMNEY: I know what waterboarding is, Senator.
McCAIN: Then I am astonished that you would think such a -- such a torture would be inflicted on anyone in our -- who we are held captive and anyone could believe that that's not torture. It's in violation of the Geneva Convention. It's in violation of existing law...
(Applause)
And, governor, let me tell you, if we're going to get the high ground in this world and we're going to be the America that we have cherished and loved for more than 200 years. We're not going to torture people.
We're not going to do what Pol Pot did. We're not going to do what's being done to Burmese monks as we speak. I suggest that you talk to retired military officers and active duty military officers like Colin Powell and others, and how in the world anybody could think that that kind of thing could be inflicted by Americans on people who are held in our custody is absolutely beyond me.
COOPER: Governor Romney, 30 seconds to respond.
(Applause)
ROMNEY: Senator McCain, I appreciate your strong response, and you have the credentials upon which to make that response. I did not say and I do not say that I'm in favor of torture.
I am not. I'm not going to specify the specific means of what is and what is not torture so that the people that we capture will know what things we're able to do and what things we're not able to do. And I get that advice from Cofer Black, who is a person who was responsible for counterterrorism in the CIA for some 35 years.
I get that advice by talking to former generals in our military...
COOPER: Time.
ROMNEY: ... and I don't believe it's appropriate for me, as a presidential candidate, to lay out all the issues one by one...
Cooper: Time.
ROMNEY: ... get questioned one by one: Is this torture, is that torture?
COOPER: Senator McCain...
ROMNEY: And so, that's something which I'm going to take your and other people's counsel on.
COOPER: Senator McCain, 30 seconds to respond.
McCAIN: Well, then you would have to advocate that we withdraw from the Geneva Conventions, which were for the treatment of people who were held prisoners, whether they be illegal combatants or regular prisoners of war. Because it's clear the definition of torture. It's in violation of laws we have passed.
And again, I would hope that we would understand, my friends, that life is not "24" and Jack Bauer.
Life is interrogation techniques which are humane and yet effective. And I just came back from visiting a prison in Iraq. The Army general there said that techniques under the Army Field Manual are working and working effectively, and he didn't think they need to do anything else.
My friends, this is what America is all about. This is a defining issue and, clearly, we should be able, if we want to be commander in chief of the U.S. Armed Forces, to take a definite and positive position on, and that is, we will never allow torture to take place in the United States of America.
(Applause)

'Nuff said.

Ant bullying

Check out today's column by our colleague Rosa Brooks on the executive detention order that U.S. President George W. Bush issued last week. To the several concerns voiced here, Brooks adds another:

[A] non-U.S. citizen may be secretly detained and interrogated by the CIA -- with no access to counsel and no independent monitoring -- as long as the CIA director believes the person "to be a member or part of or supporting Al Qaeda, the Taliban or associated organizations; and likely to be in possession of information that could assist in detecting, mitigating or preventing terrorist attacks [or] in locating the senior leadership of Al Qaeda, the Taliban or associated forces."

The person-believed-to-have-information could be an unwitting eavesdropper unwilling to come forward with what he's heard, or a young relative of an operative, Brooks writes. She reminds that the latter already may have occurred: as detailed on pages 19-20 of the superb NGO report discussed in this post, 1st Pakistan, and then the United States, are said have held in detention-for-interrogation the sons of Al Qaeda leader Khalid Sheikh Mohammed. In Pakistan the boys, aged 7 and 9, reportedly were "mentally tortured by having ants or other creatures put on their legs to scare them and say where their father was hiding." Their father eventually was caught and is now at Guantánamo; Brooks reports that the boys' whereabouts are unknown.