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.

'Nuff said

(Occasional item taking context-optional note of thought-provoking quotes)

Look, you guys get me out of Gitmo. I'll take care of Yemen.

-- Salim Ahmed Hamdan, a Yemen national, to defense attorney Charles D. Swift, as they prepared for his trial before a military commission at Guantánamo. Last week he received a 5-1/2-year sentence following conviction on 1 count of material support for terrorism. With credit for time served, Hamdan's sentence likely will end about the same time that the person elected this November assumes the U.S. Presidency early next year. It will be up to the new administration to decide whether Hamdan will be released or will endure further "enemy combatant" custody -- an option to which the current administration lays claim. (credit for sketch of Hamdan, left, and Swift (then a Navy officer, now at Emory Law School), during 2004 hearing)

On August 7

On this day in ...

... 1998 (10 years ago today) , near-simultaneous explosions at the U.S. embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, took the lives of more than 200 people and injured another 4,000. In May 2001, a federal jury in New York convicted 4 men for their role in the bombing, which they were alleged to have taken in concert with Osama bin Laden. At a sentencing hearing today, members of a military commission jury at Guantánamo are listening to evidence about Salim Ahmed Hamdan, Bin Laden's driver, whom yesterday they convicted of material support for terrorism but acquitted of more serious charges of conspiracy. (credit for photo of Nairobi embassy after bombing)

... 1813 (195 years ago today), Paulina Kellogg was born in Bloomfield, New York. After her parents' death in 1820 she moved in with a religious aunt and herself became religious; her early career interest was squelched by the church's ban on single women missionaries. Her marriage to a merchant coincided with growing activism in "women’s rights, anti-slavery and temperance causes." Widowed in 1845, she "was left an independent and wealthy woman," who studied and lectured "on female physiology and anatomy, unprecedented in her time, which is said to have encouraged some of her listeners to join the first generation of women physicians." Paulina Wright Kellogg Davis (right), following her marriage in 1849 to a member of Congress from Rhode Island: organized the 1st 2 national women's rights conventions; ran "Una, the 1st feminist periodical that was owned, written, and edited entirely by women"; co-founded the New England Woman Suffrage Association; and published A History of the National Woman’s Rights Movement (1871).

Challenges posed by brand-new military commissions

The first trial under the Bush administration's awkward new military commission rules has begun at Guantánamo Bay, as Diane posted yesterday, with Salim Ahmed Hamdan facing a commission of 6 U.S. officers. (credit for photo of Gitmo courthouse)

The presiding military judge started with a mixed set of rulings on the admissibility of evidence obtained through coercive means; so far, the judge, Navy Captain Keith J. Allred, has rejected information elicited while Hamdan was interrogated in Afghanistan but admitted data collected in American-run prisons.

The DefenseLink military commission site maintains an extensive collection of filings and scheduling information on the Hamdan trial and the commissions in general. Reviewing the documents posted there suggests how daunting it is to create, sui generis, a brand-new criminal justice system. Dozens of motions and hundreds of exhibits (most heavily redacted) demonstrate the struggle facing prosecutors, defense counsel, judges, and commission members as they try to fit the familiar practice of courts-martial and federal criminal trials into the byzantine rules of the military commissions. Uncertainty persists at every turn, from bureaucratic detail to animating concepts:

► Were counsel appropriately detailed or inappropriately replaced?

► Whither expert witnesses?

► What constitutes "armed conflict"?

► And of course, the most remarked-upon feature of the trials, the battle over the potential admissibility of evidence obtained via torture. In the World War II Nazi saboteur case, the most frequently cited historical predecessor to the new commissions, there were but a handful of military lawyers and officers who worked for but a few weeks; today, there have already been hundreds of attorneys and military officers involved during the nearly seven years since the President's first military order regarding the trial of detainees.

(Cross-posted at Legal History Blog)

Rehabilitation’s just a (dance) step away

It has now become yet another terrifying experiment in seeing just how far a state can go in treating prisoners as subhuman. In her latest Boston Review essay, our colleague Colin Dayan describes how the Supreme Court of one of the world’s oldest and largest democracies, in a case called Beard v. Banks (2006), upheld prison regulations providing that certain prisoners could be

isolated 23 hours a day in their cells, denied radio and television broadcasts, and prevented from earning a GED (General Education Diploma) or taking special education classes. They ate alone and could not make telephone calls except in emergencies or when related to legal representation. Unable to speak or socialize directly with other inmates, they stared at the unpainted, concrete, and windowless walls onto which nothing could be posted. Except for the occasional touch of an officer’s hand as they were handcuffed and chained to leave their cells, they had no contact with other human beings. Although prisoners could “graduate” out of [this special unit], the duration of their stay—beyond the minimum requirement of ninety days—was at the discretion of prison administrators, and most did not graduate. In this already severely restricted environment, the new [] policy categorically prohibited access to magazines, newspapers, or books, except paperbacks from the prison library—called “leisure books” in “[the unit’s] Rules and Regulations”—and books of a legal or religious nature.

Prison officials offered two reasons for this sweeping restriction of prisoners’ First Amendment rights. Newspapers, they said, could be wound up, turned into projectiles, used as night sticks, and deployed to make fires and hide contraband. Moreover, these officials argued, the deprivation of personal photographs and secular periodicals serves the goal of rehabilitation. Prisoners like to read about current events and look at photographs of their loved ones. Take these things away, the theory went, and recalcitrant prisoners, those “who have few other privileges to lose,” would behave.

Meanwhile, across an ocean, in a former dictatorship where “[p]risoners sleep on hard pallets more than a dozen to a cell and are held to a strict schedule of work and other activities from dawn to light-out[,]” inmates are learning that “they can be productive, that they aren’t useless scum of society”. In the prison where rehabilitation through dance began, gangs have been broken up, “weekly outbreaks of violence have subsided, inmates’ health has improved and recidivism rates are down dramatically”. This country? The Philippines, where the dance craze has spread to other prisons, thanks, in part, to this YouTube video, in which 1500 prisoners groove together.

Back in the United States, as Dayan's essay reminds us, on one day in 2006 some members of the Supreme Court expressed extreme dismay over Salim Hamdan’s being denied the right to be present at his trial before a military commission. That was just one day after members of the Court -- including some who'd expressed concern in Hamdan -- handed down the retrograde judgment upholding the denial of anything that might show certain prisoners that they are still present as human beings in society.

Meanwhile, at the Gitmo Court-Tent ...

With all the Gitmo buzz coming from D.C. these days, not much attention's been paid to the bayside camp itself. But legal news is being made there, too:
In the "portable tent" that serves as the Guantánamo Bay courthouse, a military judge heard a "marathon" of evidence last week on whether detainee Salim Ahmed Hamdan (right) is, as the government claims, an "unlawful enemy combatant" subject to trial by military commission. Defense attorneys contend that Hamdan -- whose earlier led to Supreme Court invalidation of the President's military commissions -- was a noncombatant, a driver, nothing more than a "low-ranking employee" of al-Qaeda leader Osama bin Laden. Witnesses for the prosecution countered, calling Hamdan a fighter and transporter of weaponry. (The prosecution has a new chief, incidentally, following the prior chief's resignation 10 weeks ago because, as he writes, of his conclusion that the Gitmo trials cannot be fair.) The judge now has the matter under advisement.
The other detainee case that's moving forward is that of Omar Khadr (left), who was 15 when captured. A military judge dismissed it in June; a few months later, however, the newly minted U.S. Court of Military Commission Review reversed that decision. Today, defense counsel labors under "an order not to tell anyone, including his client, who will be testifying against him." The attorney called it "an unprecedented level of secrecy that undermines the Canadian terror suspect's trial in Guantanamo Bay."
And on the other side of the Atlantic:
► The trial in France of 7 French nationals released from Gitmo 2-1/2 years ago is nearing conclusion. LeMonde reports that the public prosecution ministry has asked that 6 of the 7 be found guilty of "associating with malefactors in relation to a terrorist enterprise," the French statutory equivalent of the United States' "material support for terrorism." As to 5 of those 6, 1 year's imprisonment is sought (for the other, 5 years); if accepted, none would be returned to custody because their prior time in French prisons, plus their 3 years at Gitmo, exceeds the requested term. As for a 7th ex-detainee, the prosecutor admitted there's little evidence and asked that he not be convicted.
► Saudi ex-detainees are said to be "reintegrating" into life back home.
► Speculation's stirring about whether 4 Britons soon to be returned would face further detention or freedom at home. Their release would drop the detainee population at Gitmo -- through which 777 captives reportedly have passed -- to about 300.

GTMOre news

With so much happening, where to begin a counterterrorism update? Let's start with these 5 items relating to executive detention, then move in due course to Globally Disappeared and Accountability at Home and Abroad.

Item No. 1. Another call for Gitmo closure -- this time from Colin Powell (below), U.S. Secretary of State when the camp opened in 2002 -- came yesterday on "Meet the Press":

If it was up to me I'd close Guantánamo, not tomorrow, but this afternoon. I'd close it. And I would not let any of those people go. I would simply move them to the United States and put them and put them into our federal legal system. The concern was, 'Well, then they'll have access to lawyers. Then they'll have access to writs of habeas corpus.' So what? Let them. Isn't that what our system's all about? And by the way, America has, unfortunately, 2 million people in jail, all of whom had access to lawyers and access writs of habeas corpus. And so we can handle bad people in our system. And so I would get rid of Guantánamo and I'd get rid of the military commission system, and use established procedures in federal law or in the Manual for Courts-Martial. I would do that because I think it's a more equitable way to do it and it's more understandable in constitutional terms.
But I would also do it because every morning I pick up a paper, and some authoritarian figure, some person somewhere is using Guantánamo to hide their own misdeeds. And so essentially we have shaken the belief that the world had in America's justice system by keeping a place like Guantánamo open and creating things like the military commission. We don't need it, and it's causing us far more damage than any good we get for it.
But, remember when I started this discussion, saying, 'Don't let any of them go. Put them into a different system, a system that is experienced and knows how to handle people like this.'

Item No. 2. As posted, the commissions of which Powell spoke were halted after 2 military judges held themselves without jurisdiction to hear cases brought before them. The ruling's fueled challenges in the U.S. Court of Appeals for the District of Columbia Circuit. The 1st is on behalf of Salim Ahmed Hamdan, an en banc challenge to the commissions (N.B. Judge Allred's issued a revised order linking dismissal in Hamdan to Judge Robertson's reasoning at 344 F. Supp. 2d 152, 156 (D.D.C. 2004). The 2d is on behalf of other detainees, challenges to the Combatant Status Review Tribunals designed to precede any trial proceedings. And even before the military judges ruled, the Supreme Court had invited a U.S. response to petitions, in Boumediene and Al Odah, for rehearing of the Court's decision not to grant immediate review of detainee challenges to channeling of habeas review implemented as a result of the Military Commissions Act of 2007. (Go-to sites for news and documents on these developments: SCOTUSblog and National Institute of Military Justice.)

Item No. 3. This morning the 4th Circuit granted habeas to Ali Saleh Kahlah al-Marri, the only known "enemy combatant" designee held on U.S. soil. Rejecting the Bush Administration's invocation of the MCA's habeas strip, the majority opinion by Judge Diana Gribbon Motz (left) remanded the case to the trial court

with instructions to issue a writ of habeas corpus directing the Secretary of Defense to release al-Marri from military custody within a reasonable period .... The Government can transfer al-Marri to civilian authorities to face criminal charges, initiate deportation proceedings against him, hold him as a material witness in connection with grand jury proceedings, or detain him for a limited time pursuant to the Patriot Act. But military detention of al-Marri must cease.

Item No. 4. Habeas has been on Congress' agenda too: by an 11-8 vote late last week the Senate Judiciary Committee approved the Habeas Restoration Act (S. 185), which would undo the MCA's habeas strip. The bill is expected to reach the full Senate later in the month.

Item No. 5. Finally, Powell's catchall characterization of all detainees as "bad people" was off the mark. It's by no means an accurate label for all the 700 boys and men who've passed through Guantánamo (where, incidentally, a 4th suicide occurred 2 weeks ago almost without remark). A sad reminder of that fact is the fate of nearly 2 dozen Chinese nationals of Uighur ethnicity who, after years in executive detention, were found to pose no threat to the United States. But they couldn't be returned to China because of the possibility they would suffer harm there, and no country would grant them asylum save Albania, where life this last year has been "driving them to desperation." “Sometimes,'" 1 of them told the New York Times, "'we think it would be better to go die in our homeland than to stay here.'”