By William Fisher
A court case accusing the government of indiscriminately wiretapping ordinary American citizens – coupled with legislation now making its way through Congress – could produce another major headache for President Obama.
The central issue in the latest court case is the government’s use of the so-called “State Secrets Privilege” – the claim that presenting certain evidence in open court would endanger U.S. national security – to suppress evidence of government wrongdoing.
Both the Bush and Obama administrations have invoked the privilege numerous times not simply to suppress particular pieces of evidence – its original intent -- but to have entire lawsuits thrown out altogether.
President Obama’s headache may stem from his pledges -- both during the campaign and currently -- that he would make open government and transparency the hallmarks of his administration. But, in court cases, his lawyers have followed paths identical to those used by George W. Bush’s Justice Department. This approach to secrecy, manifested in his use of the state secrets doctrine, has triggered widespread disappointment among the progressive wing of his supporters.
These supporters are pushing hard for passage of legislation now wending its way through congress that would impose stricter limits on use of the privilege. Obama has not yet endorsed either the Senate or the House legislation.
But, according to Kevin Bankston, an attorney with the Electronic Frontier Foundation (EFF), advocates for both bills are working closely with the White House and it is likely that a bill will emerge that Obama would be comfortable signing.
However, given the legislative calendar for the rest of this session of Congress, whether the legislation will come up for a vote in this sessions remains unclear. And gaining bipartisan support, especially in the Senate, will likely be an uphill hike.
In the latest case, Shubert v. Obama, a class action brought by three Brooklyn residents, the claim is that the National Security Agency (NSA) has an ongoing dragnet surveillance program spying on the telephone and
e-mail communications of ordinary Americans. The case was originally filed in 2007 and recently amended.
The government moved to dismiss the case based on state secrecy – the first use of the state secrets privilege under the Obama Administration's "new" state secrets policy. Attorney General Eric Holder, whose Department of Justice (DOJ) has been conducting a review of the state secrets policy, explained the use of the privilege in the Shubert case.
He said, “The assertion of the state secrets privilege presents one of the most difficult challenges in balancing the American people’s right to information about actions their government takes and the government’s need to protect vital information that would compromise national security. Making the government more transparent and accountable is one of this administration’s top priorities, which is why my Department has issued reformed guidelines to govern Freedom of Information Act practices, released previously undisclosed Office of Legal Counsel (OLC) memoranda, publishes on an ongoing basis this Department’s OLC memoranda whenever possible, and, indeed, adopted our more restrictive state secrets policy.”
But critics were quick to challenge him.
Attorney Bankston said that in the Obama’s court filing, it “attempted to dress up in new clothes its embrace of one of the worst Bush Administration positions — that courts cannot be allowed to review the National Security Agency's massive, well-documented program of warrantless surveillance. In doing so it demonstrated that it will not willingly set limits on its own power and reinforced the need for Congress to step in and reform the so-called 'state secrets' privilege.”
He added, “The motion amounted to a rehashing of the exact same state secrecy arguments originated by the Bush Administration and pressed by the Obama Administration…that any attempt to have the courts rule on the legality of the NSA program would harm national security and that the courts should be blocked from considering whether the surveillance is legal or constitutional.”
The San Francisco-based Electronic Frontier Foundation focuses on issues of free speech, privacy, innovation, and consumer rights, and has brought many of the lawsuits challenging govenrment secrecy.
Meanwhile, Congressional efforts to curb the use of the state secrets privilege were moving through the House and Senate. In the Senate, the State Secret Protection Act is modeled on existing protections and procedures for handling secret evidence. Specifically, the bill would require a court to make an independent assessment of the privilege claim, and would allow evidence to be withheld only if "public disclosure of the evidence that the government seeks to protect would be reasonably likely to cause significant harm to the national defense or diplomatic relations of the United States."
The bill has been approved by the Senate Judiciary Committee, whose chairman, Democratic Senator Pat Leahy of Vermont, has been a long-time advocate of the measure. The bill was introduced by Leahy, along with felloe Democrats Arlen Specter of Pennsylvania, Russ Feingold of Wisconsin, and, shortly before his death, Edward M. Kennedy of Massachusetts.
In the House, the Judiciary Committee is taking the first steps considering a similar reform measure the form of the State Secret Protection Act of
2009. Its sponsors include Democratic Congressmembers Jerrold Nadler of New York, Thomas Petri of Wisconsin, Judiciary Chairman John Conyers, Jr. of Michigan, Bill Delahunt of Massachusetts, and Zoe Lofgren of California.
Nadler, the powerful Chairman of the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, was sharply critical of the DOJ action in the Shubert case.
"The Administration’s decision this week to adopt its predecessor’s argument that the state secret privilege requires the outright dismissal of a case challenging rendition to torture was a step in the wrong direction and a
reminder that legislation is required to ensure meaningful review of the state secret privilege," said Rep. Nadler.
Some of Obama’s most steadfast supporters have publicly disagreed with the president on this issue. For example, Senator Russ Feingold produced a “report card” on Obama’s first hundred days in office and cited the fact that Obama had invoked the state secrets privilege in three cases. He gave Obama a "D" on state secrets, and characterized his record as "troubling."
Obama’s pledge to make the government more open and accountable, coupled with his use of the state secrets privilege and other actions resulting in limiting transparency, have left many of his progressive supporters disappointed.
During his campaign for the presidency, the Obama-Biden website included state secrets as part of "The Problem" that President Obama would address, complaining that the Bush Administration "invoked a legal tool known as the 'state secrets' privilege more than any other previous administration to get cases thrown out of court."
Yet in his first 100 days, the Obama administration invoked the state secrets privilege in three cases: Al Haramain Islamic Foundation v. Obama, Mohammed v. Jeppesen Dataplan, and Jewel v. NSA. In each of these cases, the Obama’s lawyers DOJ followed exactly the same reasoning as Bush’s.
The Al-Haramain Islamic Foundation, the Oregon chapter of an Islamic charity, sued the Bush Administration for the illegal surveillance of the organization and its attorneys as part of the NSA warrantless wiretapping program. The case was based on a secret document that was inadvertently disclosed by the government that, according to the plaintiffs, demonstrates that they were subjected to unlawful electronic surveillance outside the scope of the Foreign Intelligence Surveillance Act (FISA). Following Obama’s election, DOJ lawyers took the same position as their predecessors.
The same is true in another case, Jewel v. NSA, in which the Electronic Frontier Foundation (EFF) is suing the NSA and other government agencies on behalf of AT&T customers to stop what it calls the illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records. Jewel v. NSA is aimed at ending the NSA’s dragnet surveillance of millions of ordinary Americans and holding accountable the government officials who illegally authorized it. Evidence in the case includes undisputed documents provided by former AT&T telecommunications technician Mark Klein showing AT&T has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA.
In April, the Obama administration moved to dismiss Jewel, claiming that litigation over the wiretapping program would require the government to disclose privileged "state secrets,” and that they were immune from suit. These are essentially the same arguments made by the Bush administration.
In the Jeppesen case, five British residents – all of whom were imprisoned at Guantanamo Bay – are suing a Boeing subsidiary called Jeppesen DataPlan for assisting the Central Intelligence Agency (CIA) with logistics for the flights to Afghanistan and CIA secrets prisons where they were held incommunicado and tortured. The men claim they were victims of the U.S. “extraordinary rendition” program – and that Jeppesen was complicit in the process. In this case, a federal appeals court has rejected the Obama Administration’s assertion of state secrets and ruled that the case can go forward.
And, in one of the rare occasions where judges reject the government assertion of state secrets, a federal judge in Chicago recently disagreed with the government's use of the privilege in a case involving the Department of Homeland Security's terrorist watch list, saying the plaintiff, a local businessman, could find out whether his name is on the list.
The first known use of the state secrets privilege came in a 1953 case called United States v. Reynolds. In that case, the widows of three crew members of a B-29 Superfortress bomber that had crashed in 1948 sought accident reports on the crash, but were told the release such details would threaten national security by revealing the nature of the bomber's top-secret mission.
The Supreme Court ruled that the executive branch could bar evidence from the court if it deemed that its release would impair national security. In 1996, the accident reports in question were declassified and released, and when discovered in 2000 were found to contain no secret information. They did, however, contain information about the poor condition of the aircraft itself, which would have been very compromising to the Air Force's case. Many legal experts have said that the government abused secrecy in this landmark case, which was not about national security but about protecting the incompetence of government officials.
Since then, the privilege was rarely used until the administration of George W. Bush, which is generally regarded as one of the most secretive presidencies in U.S. history. The Bush Administration invoked the state secrets doctrine numerous times in a variety of cases. Some of the best known include:
Sibel Edmonds: The privilege was invoked twice against Sibel Edmonds. The first invocation was to prevent her from testifying that the Federal Government had foreknowledge that Al-Qaeda intended to use airliners to attack the United States on September 11, 2001; the case was a $100 trillion action filed in 2002 by six hundred 9/11 victims' families against officials of the Saudi government and prominent Saudi citizens. The second invocation was in an attempt to derail her personal lawsuit regarding her dismissal from the FBI, where she had worked as a post-9/11 translator and had been a whistleblower. Edmonds took her case all the way to the Supreme Court, and lost.
Khalid El-Masri: In May 2006, the illegal detention case of Khalid El-Masri was dismissed based on the privilege, which was invoked by the Central Intelligence Agency (CIA). Khalid El-Masri alleged that he was falsely held by the CIA for several months (which the CIA acknowledges) and was beaten, drugged, and subjected to various other inhumane activity while in captivity. He was ultimately released by the CIA with no charge ever being brought against him by the United States government. The U.S. District Court dismissed the case because, according to the court, the simple fact of holding proceedings would jeopardize state secrets, as claimed by the CIA. On March 2, 2007, the United States Court of Appeals for the Fourth Circuit affirmed. On October 9, 2007, the Supreme Court declined to hear an appeal of the Fourth Circuit's decision, letting the doctrine of state secrets privilege stand.
Maher Arar: The privilege was invoked against a case where Maher Arar, a wrongfully-accused and tortured victim, sought to sue Attorney General John Ashcroft for his role in deporting Arar to Syria to face torture and extract false confessions. It was formally invoked by Deputy Attorney General James B. Comey in legal papers filed in the United States District Court for the Eastern District of New York. The invocation read, "Litigating [the] plaintiff's complaint would necessitate disclosure of classified information", which it later stated included disclosure of the basis for detaining him in the first place, the basis for refusing to deport him to Canada as he had requested, and the basis for sending him to Syria.
In the Shubert wiretapping case, the appellants claim the government is engaged in a broad surveillance “dragnet” that monitors ordinary Americans’ phone and Internet communications without a warrant and without any suspicion that the targets have done anything wrong.
Allegations that this was actually occurring was first introduced in the case of Jewel v. NSA, brought by the Electronic Frontier Foundation last year. In that case, a former AT&T telecommunications technician named Mark Klein submitted a sworn declaration describing how AT&T routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA.
Only employees cleared by the NSA were allowed to enter the room. The government has likewise moved to dismiss that case on state secrets grounds.
Another whistleblower, former NSA Intelligence Analyst Russell Tice, told Keith Olbermann on MSNBC that “the NSA had access to all Americans’ communications – faxes, phone calls, computer communications. They monitored all communications.”
The Jewel case is still pending in the same federal district court in California where the Shubert case has been filed. Oral arguments in the government’s motion to dismiss the Shubert case are scheduled for December 15 before Judge Vaughn R. Walker.
The Obama Administration’s approach to open government has disappointed its supporters in other way as well as in court. For example, just last week,
the government filed a brief in which Secretary of Defense Robert Gates invoked his authority to block the release of photos depicting the abuse of detainees in U.S. custody overseas.
The development came as part of a five-year-old Freedom of Information lawsuit brought by the American Civil Liberties Union (ACLU) demanding the release of records, including photographs, related to the abuse of prisoners. Secretary Gates was granted the authority to exempt certain images from disclosure under the Freedom of Information Act (FOIA) as part of the Homeland Security appropriations bill signed by President Obama last month.
An amendment to the bill grants the Defense Secretary authority to suppress certain photographs deemed harmful to national security. After the bill was signed into law, the ACLU urged Gates not to invoke the authority to block the release of the photos.
“Unfortunately, not only did Secretary Gates invoke the authority, but his blanket certification states that it applies to all of the photos, failing to provide the individualized assessment that the amendment's language requires. The government also failed to provide any basis for the claim that disclosure of the photos would harm national security,” the ACLU said in a statement.” The organization said it plans to file a responsive brief.
On the issue of government transparency in general, it appears that policy-makers on both sides of the aisle, as well as the public at large, are still trying to figure out how their new president thinks about such issues.
His supporters were cheered by his release of the so-called “torture memos” prepared by the Bush Administration’s Office of Legal Counsel. But they were dismayed by his cool reception to a “truth commission” to investigate possible crimes committed by the previous administration, his declaration that there would be no prosecutions of CIA officers who used what they believed to be legal interrogation techniques, and his oft-expressed wish to look forward, not backward.
And they continue to be baffled by his continuing use of the state secrets defense, wondering whether his objective is protecting national security, shielding Bush Administration officials from accountability, or preserving this executive prerogative for himself and future presidents.
Wednesday, November 18, 2009
Tuesday, November 17, 2009
MILITARY TRIBUNALS – JUSTICE ‘LITE’?
By William Fisher
While Sarah Palin and other right-wing opportunists create a cottage industry in drumming up public hysteria about Khalid Sheik Mohammed and four other terror suspects from Guantanamo coming to New York for trial, many legal experts and human rights groups are being equally outspoken in their criticism of the “new and improved” Military Commissions designated to try five other detainees.
And some are particularly incensed that Omar Khadr, Guantanamo’s “child soldier” – a Canadian captured in Afghanistan seven years ago when he was only 15 and imprisoned at GITMO ever since – is slated to be one of the “five others” to be tried before Military Commissions.
The “new and improved” military commissions were part of the 2010 National Defense Authorization Act, which President Obama signed last month. It included some changes in the rules governing military commission proceedings and is intended to replace – and improve upon -- the Bush-era Military Commissions Act of 2006, which the Supreme Court found unconstitutional last year.
Human rights groups and many legal experts are charging that, while the new regulations improve the Commissions to come extent, they remain not only unnecessary but dangerous because they establish a parallel system of second-class justice.
Furthermore, they point out, the actual implementation of Military Commission proceedings could be delayed for years by legal challenges – as were their predecessors.
Much of the early pushback against the Military Commissions is centering on the Khadr case. Khadr is a Canadian citizen who was arrested in Afghanistan when he was 15 years old, accused of throwing a grenade that killed an Army medic, and sent to Guantanamo Bay in 2002, where he has been imprisoned for more than seven years without charge or trial.
The other child soldier, Mohammed Jawad, was released back to Afghanistan after the government failed to produce enough credible evidence to bring charges against him.
Khadr is accused of throwing a grenade that killed an Army medic in Afghanistan. The U.S. government has refused to acknowledge his status as a child or to apply universally recognized standards of juvenile justice in his case.
According to Human Rights First, no international tribunal since Nuremberg has prosecuted a child for alleged war crimes. The United Nations committee that monitors the rights of children found that the United States has held alleged child soldiers at Guantánamo without giving due account of their status as children and concluded that the “conduct of criminal proceedings against children within the military justice system should be avoided.”
The only Western citizen remaining in Guantanamo, Khadr is unique in that Canada has refused to seek extradition or repatriation despite the urgings of Amnesty International, UNICEF, the Canadian Bar Association and other prominent organisations. In 2009, it was revealed that the government had spent over $1.3 million to ensure Khadr remained in Guantanamo.
In April 2009, the Federal Court of Canada ruled that the Charter of Rights and Freedoms made it obligatory for the government to immediately demand Khadr's return. After a hearing before the Court of Appeals produced the same result, the government announced they would argue their case before the Supreme Court of Canada. The Supreme Court heard the case on November 13, 2009 and their decision is pending.
A 2009 review determined that the Canadian Security Intelligence Service failed Khadr, by refusing to acknowledge his juvenile status or his repeated claims of being abused. It was also determined that Minister of Foreign Affairs Lawrence Cannon had lied when he claimed that Khadr had built bombs to kill Canadian soldiers.
Last week, on the same day Holder was appearing before the press, the Supreme Court of Canada was hearing oral arguments in an appeal by the Canadian government on two lower court decisions that found Khadr's rights under the Canadian Charter of Rights and Freedoms had been breached when Canadian officials interviewed him at the prison in Guantánamo in 2003 and shared the resulting information with U.S. authorities. Khadr's lawyers argued that Canada was complicit in his abuse and maintain that the Canadian government is obliged under international law to demand the prisoner's return.
Canadian news outlets are reporting the possibility that Khadr could still be repatriated to Canada and tried in a Canadian court.
The Attorney General believes that the reforms Congress recently incorporated into the Military Commissions Act will ensure that military commission trials will be fair and that convictions obtained will be secure. He said, “I know that the Department of Defense is absolutely committed to ensuring that military commission trials will be consistent with our highest standards as a nation, and our civilian prosecutors will continue to work closely with military prosecutors to support them in that effort.”
But many disagree -- fiercely. One of them is Prof. David Frakt of Western State University law school, the Air Force Reserve officer who successfully served as military defense counsel for a Guantanamo detainee – GITMO’s other child soldier, Mohammed Jawad, who was recently released to return to Afghanistan.
Lt. Col. Frakt has strong views on Military Commissions. He believes that “Allowing some cases to go forward in the military commissions means that some detainees are getting second-class justice.”
He is also unclear about the rationale for a system of parallel justice. He says, “The Administration's justifications for which cases are being send to federal court and which cases to military commissions don't stand up to scrutiny. For example, they claim that the attack on the U.S.S. Cole, allegedly planned by Mr. Al-Nashiri, was a violation of the law of war and therefore should be tried in a military commission, but the government has been claiming for years that the 9/11 attacks were also violations of the law of war. In fact, the attack on the U.S.S. Cole was definitively not a violation of the law of war because there was no armed conflict taking place at the time of the attack. Rather, it was an isolated terrorist attack, the type of murder of U.S. service members during peacetime that we have always tried in federal courts before.”
Frakt is also critical of the “new” Military Commissions because, like their predecessors, they fail to protect juveniles.
“It is appalling that the Obama Administration is allowing charges to go forward in the military commissions against Omar Khadr. Clearly, Omar Khadr, as a juvenile of 15 at the time of his alleged offenses, could not be tried as an adult in federal court, so they are allowing him to be tried as an adult in the military commissions, potentially making him the first child soldier to be tried and convicted as a war criminal in world history.”
He continued: “The military commissions are still fundamentally flawed in a number of respects. First, there is no requirement of any pretrial investigation, such as a preliminary hearing or grand jury. Second, there is no derivative evidence rule, or ‘fruit of the poisonous tree’ doctrine, so even if coerced statements themselves may be inadmissible, evidence derived from those coerced statements may still be admitted into evidence. Third, the MCA still authorizes the trial of detainees for a variety of offenses that are not traditional war crimes, including material support to terrorism, terrorism, conspiracy, and the invented offense of murder in violation of the law of war. Fourth, juveniles may still be subject to trial by military commission.”
Frakt said military commissions “are wholly unnecessary.” He told us, “Now that that the evidentiary rules in military commissions have been tightenened to more closely resemble the rules in federal courts, the real reason for the creation of military commissions -- the ability to gain easy convictions on tainted evidence -- has largely been removed. But the taint of the original process still lingers. The perception that the military commissions are a second-class option remains.”
He said, “The criteria for determining which cases go to commissions and which to federal courts make no sense. Basically, the cases will go to federal court if the Justice Department wants the case and thinks they can prove it, and the rest of the cases will go to the military commissions. This is further proof that the commissions are a second-class option.”
Frakt believes that the criteria being used by the Justice Department to decide between civilian courts or military commissions is entirely opportunistic.
He told us, “It is clear that a significant criteria in determining who gets tried in federal court is the Justice Department's confidence that they can secure a conviction and a death sentence. How many times did Attorney General Holder express in his press conference his confidence of a "successful outcome?"
But those kinds of statements, Frakt contends, constitute “a blatant violation of the ABA Criminal Justice Standards.”
Frakt says, “From the AG's perspective, the only possible successful outcome for the alleged 9/11 plotters is a death sentence, so he was all but guaranteeing that result.” The ABA rules “expressly prohibit prosecutors from making public statements predicting convictions, or expressing an opinion of the merits of the case or the guilt of the defendant. AG Holder repeatedly violated these rules during his press conference by expressing confidence that there would be no acquittal and that there would be a successful outcome.”
Frakt goes on to criticize the government’s approach to detention writ large. He told us, “In the extremely unlikely event of an acquittal, the AG has made it clear that the government will not release anyone they believe to pose a continuing security threat to the U.S. In that sense, these trials are a fraud because the government plans indefinite detention regardless of the outcome of the trial. Because they know that the idea of indefinite detention is unpalatable to many liberals, they are hoping to avoid the issue (and legitimize the prior illegal long-term detention) with criminal convictions.”
Frakt says he still does not accept that there is a category of people who are too dangerous to be release, but yet can't be tried. He says, “Neither the Bush Administration nor the Obama Administration has ever identified any such individual despite alleging the existence of such individuals for years.”
He suggests that, “Perhaps the only possible example of an individual who might fit in this group is Mr. al Qatani, the alleged 20th hijacker, who was charged as the 6th 9/11 co-conspirator in January 2008. However, Susan Crawford, the military commissions convening authority refused to refer the charges to trial, claiming that she was unwilling to try someone who had been demonstrably been tortured.”
But Frakt charges that even this standard is inconsistent. He reminded us that Ms, Crawford also “referred charges to trial against several other individuals who had also been tortured, including Mr. al Nashiri and KSM, suggesting that neither she nor the Justice Department see prior torture as a bar to prosecution. My belief is that if the government has sufficient reliable evidence that an individual is a dangerous terrorist to justify holding them forever, then they should be able to prove the individual's involvement in a court of law.”
Frakt is far from the only critic of Military Commissions. As Dafna Linzer points out in ProPublica, the evidence against those scheduled to be tried by Military Commission “is flimsy.” She writes that most of the remaining Guantánamo detainees “are considered too difficult to prosecute, mostly because the evidence against them is thin or based on statements obtained through coercion.”
She adds, “One defense attorney said federal prosecutors had so little on his client that they asked the detainee to suggest a charge he would be willing to plead guilty to.”
Prof. Francis Boyle of the University of Illinois law school told us, “The Canadian child soldier Omar Khadr gets processed by an Obama Kangaroo Court in violation of the Optional Protocol to the Children’s Convention on that subject, to which both the United States and Canada are contracting parties. Obama/Holder’s hypocrisy and double standards speak for themselves.”
Deborah Perlstein, formerly with Human Rights First and now at the Woodrow Wilson School for Public and International Affairs at Princeton University, points out that, “The Supreme Court has consistently recognized that our constitutional structure reflects a strong preference that determinations of guilt and innocence be carried out by independent courts created under Article III. In keeping with this constitutional presumption, the extent to which the Court has approved the use of Article I military courts, even with congressional authorization, has been strictly limited.”
She writes, “As the Hamdan Court itself noted, military commissions are courts of necessity, whose use must be incident to the conduct of a particular war. So in each case to come before the commissions, we must ask (1) What is the necessity that makes this forum appropriate? What jurisdictional gap exists that would foreclose prosecution of Al Nashiri (the accused USS Cole bomber) in federal criminal courts? What relevant principle distinguishes his crime (accused of attacking a military target) from KSMs (accused of attacking civilians)?
“And (2) To what armed conflict are these offenses incident? In this respect KSM’s case is easier; the Administration is hardly alone in viewing the attacks of 9/11 as the initiation of a war against the United States. But as far as one can tell from government allegations to date, Al Nashiri is accused of involvement in a conspiracy dating to 1998.”
She concludes, “Whether or not one can make the case under international humanitarian law (IHL) that there was a de facto non-international armed conflict already under way between the United States and Al Qaeda in the 1990’s (and the case under IHL is far from clear), our own Congress didn’t pass the Authorization for the Use of Military Force against Al Qaeda until after September 11, 2001.”
Chip Pitts, president of the Bill of Rights Defense Committee and a lecturer at Stanford University Law School, told us, “Continuing to rely on military commissions to try those otherwise unable to be convicted on strained and novel ‘war crimes’ charges (that don’t meet the usual definitions of war crimes), by contrast, proceeds from the politically popular but legally inappropriate and counterproductive ‘endless global war on terror’ mindset that has clearly been so destructive to actual national security. The fraudulent nature of the latter process is evident in the unwillingness of the new administration, like the Bush administration, to say that it will release those acquitted or whose danger remains suspected but unproven.”
Gabor Rona, international legal director of Human Rights First, told us, “The assertion that regular courts are for regular crimes and military commissions are for war crimes is false. If it were true, then why do we have a War Crimes Statute that creates jurisdiction in our federal courts?”
He added, “I'm particularly struck by this disconnect: the Task Force (appointed by President Obama) recognizes the historic limitation for use of military commissions, namely situations of ‘military necessity,’ which is properly understood as, for example, in situations of occupation where the usual mechanisms of justice are not operating. But then, despite acknowledging the success of federal court terrorism prosecutions, the Task Force sets out a series of considerations for deciding whether to send a case to military commission without due regard for the fact that federal courts are open and operating.”
The ACLU’s Jameel Jaffer said: “The commissions remain not only illegal but unnecessary – the federal courts have proven themselves capable of handling complex terrorism cases while protecting both the government’s national security interests and the defendants’ rights to a fair trial.”
And David Danzig of Human Rights First said, “Even more than seven years after the detention facility at Guantanamo was opened, it is not clear how far basic protections like attorney-client privilege extend. And the military system, unlike the federal courts, has precious little comparable experience to fall back on. As a result, every issue – however small – must be openly debated and new precedent must be hammered out. Meanwhile the years are passing and the chances that justice will be served in a timely fashion (a key legal protection in federal and military courts) seem evermore remote.”
Vincent Warren, the head of the Center for Constitutional Rights – which has mobilized dozens of pro bono lawyers to defend GITMO detainees – probably summed up where the Obama Administration is now on the issue of detention.
He said, “These are now President Obama's military commissions: he owns them and all of the problems that come with them, and their inevitable failure will scar his legacy and embolden our critics in the world. Military commissions are an unnecessary, jury-rigged creation, second-rate in comparison to our legal system. Obama is tinkering with the Constitution for no good reason.”
Since the passage of its very first incarnation, the Military Commissions Act has spent most of its time in court responding to challenges to its constitutionality. In 2006, the Supreme Court declared unconstitutional the Military Tribunals set up by the Bush Administration to try terror suspects at Guantanamo. Congress then passed the Military Commissions Act (MCA) of 2006, "To authorize trial by military commission for violations of the law of war.” But the MCA was also declared unconstitutional two years later.
While litigation was ongoing – and that was virtually constant – trials at Guantanamo came to a complete standstill. That is a major reason that there were only three trials in eight years.
Many in the human rights community see a similar fate awaiting the 2009 amended version of the MCA.
While Sarah Palin and other right-wing opportunists create a cottage industry in drumming up public hysteria about Khalid Sheik Mohammed and four other terror suspects from Guantanamo coming to New York for trial, many legal experts and human rights groups are being equally outspoken in their criticism of the “new and improved” Military Commissions designated to try five other detainees.
And some are particularly incensed that Omar Khadr, Guantanamo’s “child soldier” – a Canadian captured in Afghanistan seven years ago when he was only 15 and imprisoned at GITMO ever since – is slated to be one of the “five others” to be tried before Military Commissions.
The “new and improved” military commissions were part of the 2010 National Defense Authorization Act, which President Obama signed last month. It included some changes in the rules governing military commission proceedings and is intended to replace – and improve upon -- the Bush-era Military Commissions Act of 2006, which the Supreme Court found unconstitutional last year.
Human rights groups and many legal experts are charging that, while the new regulations improve the Commissions to come extent, they remain not only unnecessary but dangerous because they establish a parallel system of second-class justice.
Furthermore, they point out, the actual implementation of Military Commission proceedings could be delayed for years by legal challenges – as were their predecessors.
Much of the early pushback against the Military Commissions is centering on the Khadr case. Khadr is a Canadian citizen who was arrested in Afghanistan when he was 15 years old, accused of throwing a grenade that killed an Army medic, and sent to Guantanamo Bay in 2002, where he has been imprisoned for more than seven years without charge or trial.
The other child soldier, Mohammed Jawad, was released back to Afghanistan after the government failed to produce enough credible evidence to bring charges against him.
Khadr is accused of throwing a grenade that killed an Army medic in Afghanistan. The U.S. government has refused to acknowledge his status as a child or to apply universally recognized standards of juvenile justice in his case.
According to Human Rights First, no international tribunal since Nuremberg has prosecuted a child for alleged war crimes. The United Nations committee that monitors the rights of children found that the United States has held alleged child soldiers at Guantánamo without giving due account of their status as children and concluded that the “conduct of criminal proceedings against children within the military justice system should be avoided.”
The only Western citizen remaining in Guantanamo, Khadr is unique in that Canada has refused to seek extradition or repatriation despite the urgings of Amnesty International, UNICEF, the Canadian Bar Association and other prominent organisations. In 2009, it was revealed that the government had spent over $1.3 million to ensure Khadr remained in Guantanamo.
In April 2009, the Federal Court of Canada ruled that the Charter of Rights and Freedoms made it obligatory for the government to immediately demand Khadr's return. After a hearing before the Court of Appeals produced the same result, the government announced they would argue their case before the Supreme Court of Canada. The Supreme Court heard the case on November 13, 2009 and their decision is pending.
A 2009 review determined that the Canadian Security Intelligence Service failed Khadr, by refusing to acknowledge his juvenile status or his repeated claims of being abused. It was also determined that Minister of Foreign Affairs Lawrence Cannon had lied when he claimed that Khadr had built bombs to kill Canadian soldiers.
Last week, on the same day Holder was appearing before the press, the Supreme Court of Canada was hearing oral arguments in an appeal by the Canadian government on two lower court decisions that found Khadr's rights under the Canadian Charter of Rights and Freedoms had been breached when Canadian officials interviewed him at the prison in Guantánamo in 2003 and shared the resulting information with U.S. authorities. Khadr's lawyers argued that Canada was complicit in his abuse and maintain that the Canadian government is obliged under international law to demand the prisoner's return.
Canadian news outlets are reporting the possibility that Khadr could still be repatriated to Canada and tried in a Canadian court.
The Attorney General believes that the reforms Congress recently incorporated into the Military Commissions Act will ensure that military commission trials will be fair and that convictions obtained will be secure. He said, “I know that the Department of Defense is absolutely committed to ensuring that military commission trials will be consistent with our highest standards as a nation, and our civilian prosecutors will continue to work closely with military prosecutors to support them in that effort.”
But many disagree -- fiercely. One of them is Prof. David Frakt of Western State University law school, the Air Force Reserve officer who successfully served as military defense counsel for a Guantanamo detainee – GITMO’s other child soldier, Mohammed Jawad, who was recently released to return to Afghanistan.
Lt. Col. Frakt has strong views on Military Commissions. He believes that “Allowing some cases to go forward in the military commissions means that some detainees are getting second-class justice.”
He is also unclear about the rationale for a system of parallel justice. He says, “The Administration's justifications for which cases are being send to federal court and which cases to military commissions don't stand up to scrutiny. For example, they claim that the attack on the U.S.S. Cole, allegedly planned by Mr. Al-Nashiri, was a violation of the law of war and therefore should be tried in a military commission, but the government has been claiming for years that the 9/11 attacks were also violations of the law of war. In fact, the attack on the U.S.S. Cole was definitively not a violation of the law of war because there was no armed conflict taking place at the time of the attack. Rather, it was an isolated terrorist attack, the type of murder of U.S. service members during peacetime that we have always tried in federal courts before.”
Frakt is also critical of the “new” Military Commissions because, like their predecessors, they fail to protect juveniles.
“It is appalling that the Obama Administration is allowing charges to go forward in the military commissions against Omar Khadr. Clearly, Omar Khadr, as a juvenile of 15 at the time of his alleged offenses, could not be tried as an adult in federal court, so they are allowing him to be tried as an adult in the military commissions, potentially making him the first child soldier to be tried and convicted as a war criminal in world history.”
He continued: “The military commissions are still fundamentally flawed in a number of respects. First, there is no requirement of any pretrial investigation, such as a preliminary hearing or grand jury. Second, there is no derivative evidence rule, or ‘fruit of the poisonous tree’ doctrine, so even if coerced statements themselves may be inadmissible, evidence derived from those coerced statements may still be admitted into evidence. Third, the MCA still authorizes the trial of detainees for a variety of offenses that are not traditional war crimes, including material support to terrorism, terrorism, conspiracy, and the invented offense of murder in violation of the law of war. Fourth, juveniles may still be subject to trial by military commission.”
Frakt said military commissions “are wholly unnecessary.” He told us, “Now that that the evidentiary rules in military commissions have been tightenened to more closely resemble the rules in federal courts, the real reason for the creation of military commissions -- the ability to gain easy convictions on tainted evidence -- has largely been removed. But the taint of the original process still lingers. The perception that the military commissions are a second-class option remains.”
He said, “The criteria for determining which cases go to commissions and which to federal courts make no sense. Basically, the cases will go to federal court if the Justice Department wants the case and thinks they can prove it, and the rest of the cases will go to the military commissions. This is further proof that the commissions are a second-class option.”
Frakt believes that the criteria being used by the Justice Department to decide between civilian courts or military commissions is entirely opportunistic.
He told us, “It is clear that a significant criteria in determining who gets tried in federal court is the Justice Department's confidence that they can secure a conviction and a death sentence. How many times did Attorney General Holder express in his press conference his confidence of a "successful outcome?"
But those kinds of statements, Frakt contends, constitute “a blatant violation of the ABA Criminal Justice Standards.”
Frakt says, “From the AG's perspective, the only possible successful outcome for the alleged 9/11 plotters is a death sentence, so he was all but guaranteeing that result.” The ABA rules “expressly prohibit prosecutors from making public statements predicting convictions, or expressing an opinion of the merits of the case or the guilt of the defendant. AG Holder repeatedly violated these rules during his press conference by expressing confidence that there would be no acquittal and that there would be a successful outcome.”
Frakt goes on to criticize the government’s approach to detention writ large. He told us, “In the extremely unlikely event of an acquittal, the AG has made it clear that the government will not release anyone they believe to pose a continuing security threat to the U.S. In that sense, these trials are a fraud because the government plans indefinite detention regardless of the outcome of the trial. Because they know that the idea of indefinite detention is unpalatable to many liberals, they are hoping to avoid the issue (and legitimize the prior illegal long-term detention) with criminal convictions.”
Frakt says he still does not accept that there is a category of people who are too dangerous to be release, but yet can't be tried. He says, “Neither the Bush Administration nor the Obama Administration has ever identified any such individual despite alleging the existence of such individuals for years.”
He suggests that, “Perhaps the only possible example of an individual who might fit in this group is Mr. al Qatani, the alleged 20th hijacker, who was charged as the 6th 9/11 co-conspirator in January 2008. However, Susan Crawford, the military commissions convening authority refused to refer the charges to trial, claiming that she was unwilling to try someone who had been demonstrably been tortured.”
But Frakt charges that even this standard is inconsistent. He reminded us that Ms, Crawford also “referred charges to trial against several other individuals who had also been tortured, including Mr. al Nashiri and KSM, suggesting that neither she nor the Justice Department see prior torture as a bar to prosecution. My belief is that if the government has sufficient reliable evidence that an individual is a dangerous terrorist to justify holding them forever, then they should be able to prove the individual's involvement in a court of law.”
Frakt is far from the only critic of Military Commissions. As Dafna Linzer points out in ProPublica, the evidence against those scheduled to be tried by Military Commission “is flimsy.” She writes that most of the remaining Guantánamo detainees “are considered too difficult to prosecute, mostly because the evidence against them is thin or based on statements obtained through coercion.”
She adds, “One defense attorney said federal prosecutors had so little on his client that they asked the detainee to suggest a charge he would be willing to plead guilty to.”
Prof. Francis Boyle of the University of Illinois law school told us, “The Canadian child soldier Omar Khadr gets processed by an Obama Kangaroo Court in violation of the Optional Protocol to the Children’s Convention on that subject, to which both the United States and Canada are contracting parties. Obama/Holder’s hypocrisy and double standards speak for themselves.”
Deborah Perlstein, formerly with Human Rights First and now at the Woodrow Wilson School for Public and International Affairs at Princeton University, points out that, “The Supreme Court has consistently recognized that our constitutional structure reflects a strong preference that determinations of guilt and innocence be carried out by independent courts created under Article III. In keeping with this constitutional presumption, the extent to which the Court has approved the use of Article I military courts, even with congressional authorization, has been strictly limited.”
She writes, “As the Hamdan Court itself noted, military commissions are courts of necessity, whose use must be incident to the conduct of a particular war. So in each case to come before the commissions, we must ask (1) What is the necessity that makes this forum appropriate? What jurisdictional gap exists that would foreclose prosecution of Al Nashiri (the accused USS Cole bomber) in federal criminal courts? What relevant principle distinguishes his crime (accused of attacking a military target) from KSMs (accused of attacking civilians)?
“And (2) To what armed conflict are these offenses incident? In this respect KSM’s case is easier; the Administration is hardly alone in viewing the attacks of 9/11 as the initiation of a war against the United States. But as far as one can tell from government allegations to date, Al Nashiri is accused of involvement in a conspiracy dating to 1998.”
She concludes, “Whether or not one can make the case under international humanitarian law (IHL) that there was a de facto non-international armed conflict already under way between the United States and Al Qaeda in the 1990’s (and the case under IHL is far from clear), our own Congress didn’t pass the Authorization for the Use of Military Force against Al Qaeda until after September 11, 2001.”
Chip Pitts, president of the Bill of Rights Defense Committee and a lecturer at Stanford University Law School, told us, “Continuing to rely on military commissions to try those otherwise unable to be convicted on strained and novel ‘war crimes’ charges (that don’t meet the usual definitions of war crimes), by contrast, proceeds from the politically popular but legally inappropriate and counterproductive ‘endless global war on terror’ mindset that has clearly been so destructive to actual national security. The fraudulent nature of the latter process is evident in the unwillingness of the new administration, like the Bush administration, to say that it will release those acquitted or whose danger remains suspected but unproven.”
Gabor Rona, international legal director of Human Rights First, told us, “The assertion that regular courts are for regular crimes and military commissions are for war crimes is false. If it were true, then why do we have a War Crimes Statute that creates jurisdiction in our federal courts?”
He added, “I'm particularly struck by this disconnect: the Task Force (appointed by President Obama) recognizes the historic limitation for use of military commissions, namely situations of ‘military necessity,’ which is properly understood as, for example, in situations of occupation where the usual mechanisms of justice are not operating. But then, despite acknowledging the success of federal court terrorism prosecutions, the Task Force sets out a series of considerations for deciding whether to send a case to military commission without due regard for the fact that federal courts are open and operating.”
The ACLU’s Jameel Jaffer said: “The commissions remain not only illegal but unnecessary – the federal courts have proven themselves capable of handling complex terrorism cases while protecting both the government’s national security interests and the defendants’ rights to a fair trial.”
And David Danzig of Human Rights First said, “Even more than seven years after the detention facility at Guantanamo was opened, it is not clear how far basic protections like attorney-client privilege extend. And the military system, unlike the federal courts, has precious little comparable experience to fall back on. As a result, every issue – however small – must be openly debated and new precedent must be hammered out. Meanwhile the years are passing and the chances that justice will be served in a timely fashion (a key legal protection in federal and military courts) seem evermore remote.”
Vincent Warren, the head of the Center for Constitutional Rights – which has mobilized dozens of pro bono lawyers to defend GITMO detainees – probably summed up where the Obama Administration is now on the issue of detention.
He said, “These are now President Obama's military commissions: he owns them and all of the problems that come with them, and their inevitable failure will scar his legacy and embolden our critics in the world. Military commissions are an unnecessary, jury-rigged creation, second-rate in comparison to our legal system. Obama is tinkering with the Constitution for no good reason.”
Since the passage of its very first incarnation, the Military Commissions Act has spent most of its time in court responding to challenges to its constitutionality. In 2006, the Supreme Court declared unconstitutional the Military Tribunals set up by the Bush Administration to try terror suspects at Guantanamo. Congress then passed the Military Commissions Act (MCA) of 2006, "To authorize trial by military commission for violations of the law of war.” But the MCA was also declared unconstitutional two years later.
While litigation was ongoing – and that was virtually constant – trials at Guantanamo came to a complete standstill. That is a major reason that there were only three trials in eight years.
Many in the human rights community see a similar fate awaiting the 2009 amended version of the MCA.
Sunday, November 15, 2009
Holder Terror Trials Decision Triggers Praise, Condemnation, Confusion
By William Fisher
The U.S. Government’s decision to bring five high-profile terror suspects to the United States to face trials in a civilian court is triggering reactions that continue to bounce from praise to condemnation to confusion.
While human rights advocates are generally applauding the decision to conduct trials in federal court in New York they are at the same time strongly criticizing the Justice Department for keeping the Military Commissions in place to try some suspects.
There appears to be confusion about how the government is making its decisions about which courts to choose for which defendants. This process remains unclear despite prolonged media questioning of Attorney General Eric Holder at his press conference at the Justice Department on Friday.
Holder announced at that press conference that five suspects allegedly involved in the terrorist attacks of September 11, 2001, would be tried in New York, while five others would be tried before Military Commissions.
The New York trials would include that of the self-proclaimed 9/11 mastermind, Khalid Sheik Mohammed.
And at a partisan political level, members of congress and other Washington heavyweights are either praising Attorney General Holder’s decision or labeling it as handing a victory to Al Qaeda while raising dire security risks for U.S. neighborhoods.
Said House Republican Leader John Boehner of Ohio, “This decision is further evidence that the White House is reverting to a dangerous pre-9/11 mentality -- treating terrorism as a law enforcement issue and hoping for the best. We need a real strategy for fighting and winning the war on America's terrorist enemies that includes an effective, credible, and consistent plan for all terrorist detainees.'
U.S. Senate Republican Leader Mitch McConnell echoed the same theme. He said, “This misguided decision is based on the false belief that the terrorists who killed 3,000 Americans in one day on U.S. soil are common criminals -- not war criminals. But there are needless risks from this decision: classified information can be inadvertently leaked, as it was in the first World Trade Center trial; our cities will face enormous security problems; and our communities will be potential targets for attack.''
Connecticut Sen. Joe Lieberman, former Democrat elected in 2006 as an independent, said, “The terrorists who planned, participated in, and aided the Sept. 11, 2001 attacks are war criminals, not common criminals. Not only are these individuals not common criminals but war criminals, they are also not American citizens entitled to all the constitutional rights American citizens have in our federal courts. [They] should therefore be tried by military commission rather than in civilian courts in the United States.''
Other politicians appeared to waste no time locating a camera to respond to Holder’s decisions. On her Facebook page, former Alaska Gov. Sarah Palin President Obama and Attorney General Eric Holder.
In a Friday post titled, "Obama Administration's Atrocious Decision," Palin wrote: "Horrible decision, absolutely horrible. It is devastating for so many of us to hear that the Obama Administration decided that the 9/11 terrorist mastermind, Khalid Sheikh Mohammed, will be given a criminal trial in New York. This is an atrocious decision."
She expressed concern that the alleged mastermind "may walk away from this trial without receiving just punishment because of a 'hung jury' or from any variety of court room technicalities. If we are stuck with this terrible Obama Administration decision, I, like most Americans, hope that Mohammed and his co-conspirators are convicted. Hang ‘em high."
President Barack Obama, on an Asian trip, said in Tokyo, “This is a prosecutorial decision as well as a national security decision. Here's the thing that I will say: I am absolutely convinced that Khalid Sheik Mohammed will be subject to the most exacting demands of justice. The American people will insist on it and my administration will insist on it.''
Families of those who lost loved ones in the 9/11 attacks also expressed mixed emotions about the New York trials.
Military Families United, a Washington D.C. based advocacy group, said, “This decision is a victory for those who perpetrated the attacks of Sept. 11, 2001, not the American people. . . The Sept. 11 accomplices will now receive many of the same constitutional rights and privileges as ordinary Americans.''
But families represented by Kristin Breitweiser, who lost her husband in the World Trade Center attack and who helped push for the establishment of the 9/11 Commission, says New York is ready. She says she plans to attend the trial as often as she can.
“I think New Yorkers are certainly more than capable of handling it. And I think, again, it speaks to the very heart of who we are, not only as New Yorkers, but as American citizens. You know, if a crime is committed on our soil, you are going to be given a trial. You will be given access to an attorney. You'll be innocent until proven guilty,” she said.
Mayor Michael R. Bloomberg of New York said, "It is fitting that 9/11 suspects face justice near the World Trade Center site where so many New Yorkers were murdered."
Numerous human rights leaders and legal scholars have weighed in with opinions on the Holder decision, and have focused largely on the continuing role of military commissions.
Chip Pitts, president of the Bill of Rights Defense Committee and a lecturer at Stanford University Law School, told IPS, “Continuing to rely on military commissions to try those otherwise unable to be convicted on strained and novel ‘war crimes’ charges (that don’t meet the usual definitions of war crimes), by contrast, proceeds from the politically popular but legally inappropriate and counterproductive ‘endless global war on terror’ mindset that has clearly been so destructive to actual national security. The fraudulent nature of the latter process is evident in the unwillingness of the new administration, like the Bush administration, to say that it will release those acquitted or whose danger remains suspected but unproven.”
Another critic of the military commission system is Air Force Reserve Lt. Col. David Frakt, who served as a military defense counsel to a Guantanamo detainee.
He told IPS, “Military commissions are wholly unnecessary. There are virtually no examples of true war crimes committed by detainees during the armed conflict that started after 9/11. Almost all the offenses relate either to pre 9-11 activity and involve material support to terrorism, conspiracy and terrorism. These offenses can be effectively tried in federal courts.” Frakt now teaches law at Western State University in California.
During the administration of President George W. Bush, Guantanamo became for many a worldwide symbol of U.S. lawlessness and brutality in the treatment of prisoners. The system of justice set up there was rejected by the U.S. Supreme Court multiple times. Many of the unlawful acts committed at Guantanamo were later found at Abu Ghraib prison in Iraq, at Bagram Air Base in Afghanistan, and in other U.S. detention facilities. Despite multiple military investigations, no senior American was ever charged or convicted of wrongdoing.
The U.S. Government’s decision to bring five high-profile terror suspects to the United States to face trials in a civilian court is triggering reactions that continue to bounce from praise to condemnation to confusion.
While human rights advocates are generally applauding the decision to conduct trials in federal court in New York they are at the same time strongly criticizing the Justice Department for keeping the Military Commissions in place to try some suspects.
There appears to be confusion about how the government is making its decisions about which courts to choose for which defendants. This process remains unclear despite prolonged media questioning of Attorney General Eric Holder at his press conference at the Justice Department on Friday.
Holder announced at that press conference that five suspects allegedly involved in the terrorist attacks of September 11, 2001, would be tried in New York, while five others would be tried before Military Commissions.
The New York trials would include that of the self-proclaimed 9/11 mastermind, Khalid Sheik Mohammed.
And at a partisan political level, members of congress and other Washington heavyweights are either praising Attorney General Holder’s decision or labeling it as handing a victory to Al Qaeda while raising dire security risks for U.S. neighborhoods.
Said House Republican Leader John Boehner of Ohio, “This decision is further evidence that the White House is reverting to a dangerous pre-9/11 mentality -- treating terrorism as a law enforcement issue and hoping for the best. We need a real strategy for fighting and winning the war on America's terrorist enemies that includes an effective, credible, and consistent plan for all terrorist detainees.'
U.S. Senate Republican Leader Mitch McConnell echoed the same theme. He said, “This misguided decision is based on the false belief that the terrorists who killed 3,000 Americans in one day on U.S. soil are common criminals -- not war criminals. But there are needless risks from this decision: classified information can be inadvertently leaked, as it was in the first World Trade Center trial; our cities will face enormous security problems; and our communities will be potential targets for attack.''
Connecticut Sen. Joe Lieberman, former Democrat elected in 2006 as an independent, said, “The terrorists who planned, participated in, and aided the Sept. 11, 2001 attacks are war criminals, not common criminals. Not only are these individuals not common criminals but war criminals, they are also not American citizens entitled to all the constitutional rights American citizens have in our federal courts. [They] should therefore be tried by military commission rather than in civilian courts in the United States.''
Other politicians appeared to waste no time locating a camera to respond to Holder’s decisions. On her Facebook page, former Alaska Gov. Sarah Palin President Obama and Attorney General Eric Holder.
In a Friday post titled, "Obama Administration's Atrocious Decision," Palin wrote: "Horrible decision, absolutely horrible. It is devastating for so many of us to hear that the Obama Administration decided that the 9/11 terrorist mastermind, Khalid Sheikh Mohammed, will be given a criminal trial in New York. This is an atrocious decision."
She expressed concern that the alleged mastermind "may walk away from this trial without receiving just punishment because of a 'hung jury' or from any variety of court room technicalities. If we are stuck with this terrible Obama Administration decision, I, like most Americans, hope that Mohammed and his co-conspirators are convicted. Hang ‘em high."
President Barack Obama, on an Asian trip, said in Tokyo, “This is a prosecutorial decision as well as a national security decision. Here's the thing that I will say: I am absolutely convinced that Khalid Sheik Mohammed will be subject to the most exacting demands of justice. The American people will insist on it and my administration will insist on it.''
Families of those who lost loved ones in the 9/11 attacks also expressed mixed emotions about the New York trials.
Military Families United, a Washington D.C. based advocacy group, said, “This decision is a victory for those who perpetrated the attacks of Sept. 11, 2001, not the American people. . . The Sept. 11 accomplices will now receive many of the same constitutional rights and privileges as ordinary Americans.''
But families represented by Kristin Breitweiser, who lost her husband in the World Trade Center attack and who helped push for the establishment of the 9/11 Commission, says New York is ready. She says she plans to attend the trial as often as she can.
“I think New Yorkers are certainly more than capable of handling it. And I think, again, it speaks to the very heart of who we are, not only as New Yorkers, but as American citizens. You know, if a crime is committed on our soil, you are going to be given a trial. You will be given access to an attorney. You'll be innocent until proven guilty,” she said.
Mayor Michael R. Bloomberg of New York said, "It is fitting that 9/11 suspects face justice near the World Trade Center site where so many New Yorkers were murdered."
Numerous human rights leaders and legal scholars have weighed in with opinions on the Holder decision, and have focused largely on the continuing role of military commissions.
Chip Pitts, president of the Bill of Rights Defense Committee and a lecturer at Stanford University Law School, told IPS, “Continuing to rely on military commissions to try those otherwise unable to be convicted on strained and novel ‘war crimes’ charges (that don’t meet the usual definitions of war crimes), by contrast, proceeds from the politically popular but legally inappropriate and counterproductive ‘endless global war on terror’ mindset that has clearly been so destructive to actual national security. The fraudulent nature of the latter process is evident in the unwillingness of the new administration, like the Bush administration, to say that it will release those acquitted or whose danger remains suspected but unproven.”
Another critic of the military commission system is Air Force Reserve Lt. Col. David Frakt, who served as a military defense counsel to a Guantanamo detainee.
He told IPS, “Military commissions are wholly unnecessary. There are virtually no examples of true war crimes committed by detainees during the armed conflict that started after 9/11. Almost all the offenses relate either to pre 9-11 activity and involve material support to terrorism, conspiracy and terrorism. These offenses can be effectively tried in federal courts.” Frakt now teaches law at Western State University in California.
During the administration of President George W. Bush, Guantanamo became for many a worldwide symbol of U.S. lawlessness and brutality in the treatment of prisoners. The system of justice set up there was rejected by the U.S. Supreme Court multiple times. Many of the unlawful acts committed at Guantanamo were later found at Abu Ghraib prison in Iraq, at Bagram Air Base in Afghanistan, and in other U.S. detention facilities. Despite multiple military investigations, no senior American was ever charged or convicted of wrongdoing.
Wednesday, November 11, 2009
ARAR REDUX?
By William Fisher
On the heels of a federal appeals court ruling that only Congress and the executive branch of government – not the courts -- can interfere with government-sponsored “extraordinary rendition, ” a U.S. citizen from New Jersey is asking another court to tell the government it wasn’t OK to secretly imprison and abuse him in three different African countries over a period of four months.
The citizen is Amir Meshal, 24, the son of Muslim immigrants from Egypt.
According to the American Civil Liberties Union (ACLU), which filed the lawsuit in Meshal’s behalf, after fleeing hostilities in Somalia in 2006, Meshal was arrested, secretly imprisoned in inhumane conditions and subjected to harsh interrogations by U.S. officials over 30 times in three different countries before ultimately being released four months later without charge,
"This case challenges the US government’s effort to evade accountability for illegal detention and interrogations in counter-terrorism operations by masking and hiding its involvement," Jonathan Hafetz, a staff attorney with the ACLU National Security Project, told IPS.
According to the ACLU, Meshal was studying Islam in Mogadishu, Somalia, in December 2006, when hostilities broke out. With the airport disabled by bombing, Meshal fled to neighboring Kenya, where he wandered in the forest for three weeks seeking shelter and assistance before being arrested. Following his arrest, he was detained and repeatedly interrogated by U.S. officials who threatened to harm him, denied him access to counsel and accused him of receiving training from al-Qaeda, which Meshal denied.
Following his arrest and detention in Kenya, the suit says Meshal was illegally rendered to Somalia and then to Ethiopia where he was imprisoned in secret for over three months. There, U.S. officials subjected him to harsh interrogations while denying him due process and access to a lawyer, his family or anyone else in the outside world.
“The harsh treatment and mental anguish this individual suffered should never be experienced by anyone, let alone an American citizen at the hands of his own government,” said Hafetz. “This violation of basic constitutional rights must be remedied.”
Court filings say that during his detention, Meshal was kept in “filthy, crowded conditions in cells infested with cockroaches and given inadequate access to food, water and toilets. While in Kenya, the Americans who interrogated him repeatedly threatened him with torture. The interrogators warned Meshal that he could be sent to Somalia or Egypt, where the Egyptians ‘had ways of making him talk’, if he refused to answer questions or agree to the interrogators' allegations. Meshal was also threatened with being sent to Israel, where, the interrogators said, the Israelis would “make him disappear.”
At least one consular affairs official from the U.S. Embassy in Nairobi met with Meshal and was aware of his detention, but later claimed he lost contact with Meshal following his rendition to Ethiopia. Meshal was finally released in May 2007 with no additional explanation.
“This is a U.S. citizen who was caught in hostilities abroad, and instead of
helping him return, U.S. officials abused him and mistreated him and never
charged him with a crime,” said Nusrat Choudhury, one of the lead lawyers from the ACLU representing Meshal. “Should they be allowed to do that without helping a U.S. citizen get home, and instead, denying him access to lawyers?”
The complaint was filed in the U.S. District Court for the District of Columbia against two agents of the Federal Bureau of Investigation (FBI) and two other unnamed U.S. government officials.
Last week, another Federal court ruled that the courts have no jurisdiction over matters relating to the practice known as “extraordinary rendition” – kidnapping a person in U.S. custody and sending him/her to a prison in another country.
In a 7-4 decision in the celebrated case known as Arar v. Ashcroft, the appeals court for the second circuit in New York wrote, “If a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence to set parameters, delineate safe harbors, and specify relief. If Congress chooses to legislate on this subject, then judicial review of such legislation would be available.”
Some legal authorities believe Meshal may have a better chance of influencing the court because he is a U.S. citizen. The only other U.S. citizen whose lawsuit against a U.S. official has not been dismissed is Jose Padilla. Deemed an “enemy combatant” and currently serving a prison sentence for providing material support to terrorists, he is suing John Yoo, the former lawyer at the Justice Department who justified torture and Padilla says personally helped to devise his illegal treatment. A federal court in California refused to dismiss his case, in part because there was no other way for a U.S. citizen to hold U.S. officials accountable.
The ACLU also believes its case is stronger because the FBI agents named in the suit were not acting in a high-level supervisory role but were actually in the room, participated, and threatened him, while Meshal was being interrogated.
The Arar case involves a Canadian citizen, Maher Arar, who was detained by U.S. government officials at Kennedy International Airport in 2002 while enroute to his home in Canada following a vacation in Africa. He was held incommunicado for two weeks, then flown to Jordan and finally to Syria, where he was imprisoned in a coffin-size cell and tortured for ten months before being released by the Syrians without charges or explanation.
A two-year-long Canadian Government inquiry established that Canada had provided the US with incorrect information about Arar, and that he was guilty of nothing. He received an apology from the Canadian government and a cash award of $10 million.
The U.S., far from apologizing to Arar, has barely acknowledged that an error was committed. Condoleezza Rice, who was secretary of state at the time, has said only that the matter was not handled as well as it should have been.
The opinion by a majority of the New York appeal judges said, “For decades the United States and other countries have used ‘renditions’ to transport terrorist suspects from the country where they were captured to their home country or to other countries where they can be questioned, held, or brought to justice.”
It ruled that “Congress has not prohibited the practice, imposed limits on its use, or created a cause of action for those who allege they have suffered constitutional injury as a consequence.”
Four judges issued dissenting opinions. One of them, Judge Guido Calabresi, wrote, “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”
Arar’s attorney, David Cole, indicated that the decision would be appealed to the Supreme Court.
He told IPS, “If the rule of law means anything, it must mean that courts can hear the claim of an innocent man subjected to torture that violates our most basic constitutional commitments.”
There is at least one other major case involving rendition pending before U.S. appeals courts. In California, four men who claim they were “rendered” to secret prisons where they were tortured are suing a Boeing subsidiary company they say knowingly handled the logistics of their rendition flights for the Central Intelligence Agency (CIA).
On the heels of a federal appeals court ruling that only Congress and the executive branch of government – not the courts -- can interfere with government-sponsored “extraordinary rendition, ” a U.S. citizen from New Jersey is asking another court to tell the government it wasn’t OK to secretly imprison and abuse him in three different African countries over a period of four months.
The citizen is Amir Meshal, 24, the son of Muslim immigrants from Egypt.
According to the American Civil Liberties Union (ACLU), which filed the lawsuit in Meshal’s behalf, after fleeing hostilities in Somalia in 2006, Meshal was arrested, secretly imprisoned in inhumane conditions and subjected to harsh interrogations by U.S. officials over 30 times in three different countries before ultimately being released four months later without charge,
"This case challenges the US government’s effort to evade accountability for illegal detention and interrogations in counter-terrorism operations by masking and hiding its involvement," Jonathan Hafetz, a staff attorney with the ACLU National Security Project, told IPS.
According to the ACLU, Meshal was studying Islam in Mogadishu, Somalia, in December 2006, when hostilities broke out. With the airport disabled by bombing, Meshal fled to neighboring Kenya, where he wandered in the forest for three weeks seeking shelter and assistance before being arrested. Following his arrest, he was detained and repeatedly interrogated by U.S. officials who threatened to harm him, denied him access to counsel and accused him of receiving training from al-Qaeda, which Meshal denied.
Following his arrest and detention in Kenya, the suit says Meshal was illegally rendered to Somalia and then to Ethiopia where he was imprisoned in secret for over three months. There, U.S. officials subjected him to harsh interrogations while denying him due process and access to a lawyer, his family or anyone else in the outside world.
“The harsh treatment and mental anguish this individual suffered should never be experienced by anyone, let alone an American citizen at the hands of his own government,” said Hafetz. “This violation of basic constitutional rights must be remedied.”
Court filings say that during his detention, Meshal was kept in “filthy, crowded conditions in cells infested with cockroaches and given inadequate access to food, water and toilets. While in Kenya, the Americans who interrogated him repeatedly threatened him with torture. The interrogators warned Meshal that he could be sent to Somalia or Egypt, where the Egyptians ‘had ways of making him talk’, if he refused to answer questions or agree to the interrogators' allegations. Meshal was also threatened with being sent to Israel, where, the interrogators said, the Israelis would “make him disappear.”
At least one consular affairs official from the U.S. Embassy in Nairobi met with Meshal and was aware of his detention, but later claimed he lost contact with Meshal following his rendition to Ethiopia. Meshal was finally released in May 2007 with no additional explanation.
“This is a U.S. citizen who was caught in hostilities abroad, and instead of
helping him return, U.S. officials abused him and mistreated him and never
charged him with a crime,” said Nusrat Choudhury, one of the lead lawyers from the ACLU representing Meshal. “Should they be allowed to do that without helping a U.S. citizen get home, and instead, denying him access to lawyers?”
The complaint was filed in the U.S. District Court for the District of Columbia against two agents of the Federal Bureau of Investigation (FBI) and two other unnamed U.S. government officials.
Last week, another Federal court ruled that the courts have no jurisdiction over matters relating to the practice known as “extraordinary rendition” – kidnapping a person in U.S. custody and sending him/her to a prison in another country.
In a 7-4 decision in the celebrated case known as Arar v. Ashcroft, the appeals court for the second circuit in New York wrote, “If a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence to set parameters, delineate safe harbors, and specify relief. If Congress chooses to legislate on this subject, then judicial review of such legislation would be available.”
Some legal authorities believe Meshal may have a better chance of influencing the court because he is a U.S. citizen. The only other U.S. citizen whose lawsuit against a U.S. official has not been dismissed is Jose Padilla. Deemed an “enemy combatant” and currently serving a prison sentence for providing material support to terrorists, he is suing John Yoo, the former lawyer at the Justice Department who justified torture and Padilla says personally helped to devise his illegal treatment. A federal court in California refused to dismiss his case, in part because there was no other way for a U.S. citizen to hold U.S. officials accountable.
The ACLU also believes its case is stronger because the FBI agents named in the suit were not acting in a high-level supervisory role but were actually in the room, participated, and threatened him, while Meshal was being interrogated.
The Arar case involves a Canadian citizen, Maher Arar, who was detained by U.S. government officials at Kennedy International Airport in 2002 while enroute to his home in Canada following a vacation in Africa. He was held incommunicado for two weeks, then flown to Jordan and finally to Syria, where he was imprisoned in a coffin-size cell and tortured for ten months before being released by the Syrians without charges or explanation.
A two-year-long Canadian Government inquiry established that Canada had provided the US with incorrect information about Arar, and that he was guilty of nothing. He received an apology from the Canadian government and a cash award of $10 million.
The U.S., far from apologizing to Arar, has barely acknowledged that an error was committed. Condoleezza Rice, who was secretary of state at the time, has said only that the matter was not handled as well as it should have been.
The opinion by a majority of the New York appeal judges said, “For decades the United States and other countries have used ‘renditions’ to transport terrorist suspects from the country where they were captured to their home country or to other countries where they can be questioned, held, or brought to justice.”
It ruled that “Congress has not prohibited the practice, imposed limits on its use, or created a cause of action for those who allege they have suffered constitutional injury as a consequence.”
Four judges issued dissenting opinions. One of them, Judge Guido Calabresi, wrote, “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”
Arar’s attorney, David Cole, indicated that the decision would be appealed to the Supreme Court.
He told IPS, “If the rule of law means anything, it must mean that courts can hear the claim of an innocent man subjected to torture that violates our most basic constitutional commitments.”
There is at least one other major case involving rendition pending before U.S. appeals courts. In California, four men who claim they were “rendered” to secret prisons where they were tortured are suing a Boeing subsidiary company they say knowingly handled the logistics of their rendition flights for the Central Intelligence Agency (CIA).
Another Problem for Obama: Prison Corruption
By William Fisher
Amid the near-constant speculation over President Barack Obama’s strategy for Afghanistan, there appears to be virtually universal consensus that rooting out corruption has to be a top priority if the U.S. and its NATO allies are to have a “credible partner” in the Afghan government.
But corruption takes many forms and is found at many levels. To the lawyers of Human Rights First (HRF) understanding the relationship between corruption, how prisoners are treated, and the rule of law, is “critical to the success of any strategy” the Obama Administration may decide to pursue.
Sahr MuhammedAlly, an HRF attorney and author of a new report, “Fixing Afghanistan,” explained. She told Truthout:
“Over the past eight years, the prisoner detention policies and practices of both the Afghans and the Americans and their NATO allies have been totally uncoordinated -- a complete disaster. A man is arrested and confined to a cell. Hours later, that same person is out on the street, having bribed his prison guard to gain his freedom. His next stop is his bomb-making safe house. And the step after that is a crowded marketplace in Kabul or Kandahar littered with dead bodies.”
And that, she adds, “is no more or no less corrupt than a person who gets arrested and imprisoned, is denied a lawyer, is kept for months, even years, in prison conditions that can only be described as medieval, with no hope of ever seeing freedom again – because the guy was in the wrong place at the wrong time or because someone lost his paperwork or because someone with power was able to get money by selling this person into a legal no-man’s land.”
MuhammedAlly says “rule of law” training designed to prevent both kinds of situations has been going on for eight years, but has been “uncoordinated.” She says the U.S., NATO, and the Afghan Government are going have to recognize that “further detention policy reforms at Bagram are critical to achieving U.S. counterinsurgency goals in Afghanistan.” And these reforms, she adds, are going to require substantial resources.
That is the central message of the new HRF policy paper. It outlines steps the United States should take now “to establish legitimacy in the eyes of the Afghan people and to more fully align U.S. detentions with strategic priorities.”
"Successful counterinsurgency depends on U.S. actions being seen as fair, humane, and beneficial to the security of the Afghan people, whose cooperation is needed to ensure a stable Afghanistan," said MuhammedAlly, who wrote the paper.
The paper says, "To achieve this goal, the U.S. government should take further steps now to support U.S. goals of bolstering Afghan sovereignty, increase the capacity of the Afghans to handle detentions on their own, and to establish legitimacy of U.S. detentions in the eyes of the Afghan people by reducing the risks of arbitrary detentions, mistaken captures, and to ensure detainees a more meaningful way to challenge their detention."
The report notes that in April 2009, HRF interviewed former prisoners held by the United States in Afghanistan who at the time of their release were found by the U.S.military not to be a threat to U.S.,Afghan or Coalition forces. The report says that some detainees interviewed had been detained for five years, others from four months to two years.
According to those we interviewed in April, “prisoners held by the U.S. military in Afghanistan were not informed of the reasons for their detention or the specific allegations against them. They were not provided with any evidence that would support claims that they are members of the Taliban, al Qaeda or supporters of other insurgent groups. They did not have lawyers.”
Detainees, it continues, “were not allowed to bring village elders or witnesses to speak on their behalf or allowed to offer evidence that the allegations could be based on individual animosities or tribal rivalries. These prisoners had no meaningful way to challenge their detention. Former prisoners and Afghan government officials told Human Rights First that captures based on unreliable information have led to the wrongful detention of many individuals, which in turn creates friction between the Afghan people and the Afghan government as well as the U.S. military.”
The report continues: “In 2008 and in our follow-up visit to Afghanistan in 2009, we found that individuals transferred from U.S. to Afghan custody for prosecution in the Afghan National Defense Facility are tried in proceedings that fail to meet Afghan and international fair trial standards. Prosecutions were based on allegations and evidence provided by the United States, supplemented by investigations conducted by the Afghan intelligence agency, the National Directorate of Security (NDS),years after the initial capture. Although lawyers defend detainees at the ANDF, during the trials there were no prosecution witnesses,no out-of-court sworn prosecution witness statements, and little or no physical evidence presented to support the charges.”
Specifically, HRF recommends that the U.S. and Afghan governments enter into a public security agreement that sets forth the grounds and procedures for U.S. detentions consistent with international law. In order to avoid mistaken captures, the organization says, the U.S. must improve intelligence that results in detention. It must reduce the risk of arbitrary detentions by providing detainees sufficient ability to challenge their detention.
The U.S. must also work to increase the capacity of the Afghan authorities to handle detentions on their own by involving Afghan judges in a joint-U.S.-Afghan review body. The U.S. should establish more transparency for detention operations by facilitating access to detainees and to U.S. detention facilities by Afghan and international human rights organizations. And
the U.S. should strengthen the fairness of Afghan criminal prosecutions of those captured by the United States by providing resources and training to soldiers to assist them in information and evidence collection at point of capture.
Back in September, the Pentagon announced new detainee review board (DRB) procedures for the 600 detainees being held by the U.S. military at Bagram.
The new guidelines would assign a United States non-lawyer military official to each detainee. They would be tasked to gather exculpatory witnesses and evidence to present before review boards to be appointed by the U.S. military.
Currently, these detainees – some of whom have been imprisoned for more than six years – do not have access to lawyers and have no right to hear the allegations against them. Their status as "enemy combatants" is theoretically reviewed periodically by military panels, but critics say these reviews are incomplete, prejudiced, and ineffective.
Also announced were reforms outlined in General Stanley McChrystal's August 30th assessment on Afghanistan for both U.S. and Afghan prisons, focusing on rehabilitation and skills training of prisoners in order to prevent their radicalization, as well as on evidentiary concerns that hinder successful and fair prosecution of suspected insurgents transferred by international military forces to Afghan courts.
General McChrystal noted that "detention operations while critical to counterinsurgency operations, also have the potential to become a strategic liability for the U.S. and ISAF" and concluded that the "desired endstate" is to transfer all detention operations, including U.S., to the Afghan government provided it has the capacity to run these systems in accordance with international and national law.
"We are mindful of the significant challenges that lie ahead to accomplish the detention goals outlined by the Pentagon and we are gratified to see improved detainee review procedures replace ones that were unfair and detrimental to U.S. counterinsurgency goals. To win back support for its mission and cooperation of the Afghan people, the United States however, must enact further reforms to U.S. detention practices," said MuhammedAlly.
She said, "Given the lessons learned from Guantanamo, it is important that detention review procedures in Bagram must provide detainees a legal representative to ensure a meaningful mechanism for detainees to challenge their detention which the new procedures don’t provide."
"It is equally important to improve the reliability of information leading to capture of an individual in order to mitigate the risks of erroneous detentions, which the new procedures do not address, " she added.
MuhammedAlly called for independent, public monitoring of the implementation of the new procedures in order to assess their effectiveness.
HRF’s recommendations come as the newly created Joint Task Force 435 in Afghanistan undertakes its mission to oversee new detainee review procedures in Bagram and assess how to effectuate the "endstate" of transferring detention operations to the Afghan government. It also comes as the Obama Administration nears the end of its own policy review and prepares to announce its strategy for Afghanistan operations.
In September, human rights activists and legal experts reacted swiftly to disclosures that the U.S. government is planning to introduce new measures it claimed would give inmates at Afghanistan’s notorious Bagram prison more opportunities to challenge their detention.
Their views ranged from cautious optimism to total condemnation.
Tina Monshipour Foster, executive director of the International Justice Network (IJN), a legal advocacy group that represents four Bagram detainees in a pending federal court case, called the proposed changes "a step in the wrong direction."
She told us, "No set of procedures will have legitimacy until there is transparency and accountability for any violations of the military’s own rules. Preventing the accused from having contact with his lawyer is antithetical to any legitimate system of justice."
She said the first step should be to allow the detainees access to actual lawyers. Anything less, she added, "only invites rule-breaking and casts doubt over the legitimacy of any proceedings that may be going on behind closed doors."
"The ‘new’ procedures adopted by the Obama administration are not new at all; they appear to be exactly the same as the procedures created by the Bush administration in response to prior court challenges by Guantanamo detainees," she said.
David Frakt, a law professor at Western State University and former Guantanamo defense counsel, was skeptical that the administration’s new rules would work.
He told us, "The administration’s proposal to provide greater rights to detainees at Bagram reminds me of the Bush administration’s woefully inadequate Combatant Status Review Tribunal (CSRT) process for detainees at Guantanamo, which has been suspended by the Obama administration after serious criticism by the Supreme Court."
He said, "The most obvious flaw with the proposed process is the failure to provide counsel to the detainees. Instead, the administration proposes to assign officers with no special expertise to serve as the detainees’ representative. This model was a complete failure for the CSRTs and should not be repeated."
He added," It is simply unrealistic to expect non-lawyers to zealously advocate on behalf of the detainees, or to be effective in gathering witnesses and evidence to challenge the lawfulness of the detention."
In April, the American Civil Liberties Union (ACLU) filed a Freedom of Information Act (FOIA) request asking the Obama administration to make public records pertaining to the detention and treatment of prisoners held at Bagram. The government has not yet turned over the records.
Melissa Goodman, a staff attorney with the ACLU National Security Project, said that while she found the proposed new guidelines "encouraging," she remains concerned about the level of secrecy that surrounds Bagram.
"The public remains uninformed of basic facts such as who is imprisoned there, how long they have been held, where they were captured, and on what grounds they are being subjected to indefinite detention," she noted.
"The government should make public documents that could shed light on this crucial information about the detention and treatment of prisoners at Bagram," she said.
Chip Pitts, a lecturer at the Stanford University law school and president of the Bill of Rights Defense Committee, also expressed skepticism.
He told us, "Whatever the new rules say, it’s crucial that they distinguish between classical and legitimate conflicts where the rules of war apply, and the continuing attempt to encompass all counterterrorism within the illegitimate, overbroad, so-called ‘war on terror’ framework that wrongly disregards fundamental rights of civilians who are not active on actual battlefields."
While it is unclear how soon the Pentagon’s new guidelines will be implemented – largely because of lack of personnel – they appear to have been announced with some sense of urgency. The probable reason is that the Obama administration is preparing to appeal a federal judge’s ruling in April that some Bagram prisoners brought in from outside Afghanistan have a right to challenge their imprisonment.
In that decision, a federal district judge, John D. Bates, ruled that three detainees at Bagram had the same legal rights that the Supreme Court last year granted to prisoners held at Guantánamo Bay, because they were captured outside Afghanistan and taken to Bagram, where they have been held for more than six years without trials.
The two Yemenis and a Tunisian want a civilian judge to review the evidence against them and order their release, under the constitutional right of habeas corpus.
Chip Pitts supports their position. He told us, "Judge Bates’ decision laudably made that distinction, and, rather than fight it, the Obama administration should take the opportunity to restore sensible and moral rules in keeping with nearly a millennium of legal evolution."
"These would recognize that civilians have a right to habeas corpus, that combatants on true battlefield situations have a right to article V hearings under the Geneva Conventions, and that places like Bagram shouldn’t be manipulated to simply form new Guantanamos or law-free zones," Pitts said.
There are some 600-plus prisoners being held at Bagram. Critics charge that President Barack Obama has been turning Bagram into “a new Guantanamo,” since terror suspects are no longer being sent to the prison in Cuba because of plans to close it in January.
Amid the near-constant speculation over President Barack Obama’s strategy for Afghanistan, there appears to be virtually universal consensus that rooting out corruption has to be a top priority if the U.S. and its NATO allies are to have a “credible partner” in the Afghan government.
But corruption takes many forms and is found at many levels. To the lawyers of Human Rights First (HRF) understanding the relationship between corruption, how prisoners are treated, and the rule of law, is “critical to the success of any strategy” the Obama Administration may decide to pursue.
Sahr MuhammedAlly, an HRF attorney and author of a new report, “Fixing Afghanistan,” explained. She told Truthout:
“Over the past eight years, the prisoner detention policies and practices of both the Afghans and the Americans and their NATO allies have been totally uncoordinated -- a complete disaster. A man is arrested and confined to a cell. Hours later, that same person is out on the street, having bribed his prison guard to gain his freedom. His next stop is his bomb-making safe house. And the step after that is a crowded marketplace in Kabul or Kandahar littered with dead bodies.”
And that, she adds, “is no more or no less corrupt than a person who gets arrested and imprisoned, is denied a lawyer, is kept for months, even years, in prison conditions that can only be described as medieval, with no hope of ever seeing freedom again – because the guy was in the wrong place at the wrong time or because someone lost his paperwork or because someone with power was able to get money by selling this person into a legal no-man’s land.”
MuhammedAlly says “rule of law” training designed to prevent both kinds of situations has been going on for eight years, but has been “uncoordinated.” She says the U.S., NATO, and the Afghan Government are going have to recognize that “further detention policy reforms at Bagram are critical to achieving U.S. counterinsurgency goals in Afghanistan.” And these reforms, she adds, are going to require substantial resources.
That is the central message of the new HRF policy paper. It outlines steps the United States should take now “to establish legitimacy in the eyes of the Afghan people and to more fully align U.S. detentions with strategic priorities.”
"Successful counterinsurgency depends on U.S. actions being seen as fair, humane, and beneficial to the security of the Afghan people, whose cooperation is needed to ensure a stable Afghanistan," said MuhammedAlly, who wrote the paper.
The paper says, "To achieve this goal, the U.S. government should take further steps now to support U.S. goals of bolstering Afghan sovereignty, increase the capacity of the Afghans to handle detentions on their own, and to establish legitimacy of U.S. detentions in the eyes of the Afghan people by reducing the risks of arbitrary detentions, mistaken captures, and to ensure detainees a more meaningful way to challenge their detention."
The report notes that in April 2009, HRF interviewed former prisoners held by the United States in Afghanistan who at the time of their release were found by the U.S.military not to be a threat to U.S.,Afghan or Coalition forces. The report says that some detainees interviewed had been detained for five years, others from four months to two years.
According to those we interviewed in April, “prisoners held by the U.S. military in Afghanistan were not informed of the reasons for their detention or the specific allegations against them. They were not provided with any evidence that would support claims that they are members of the Taliban, al Qaeda or supporters of other insurgent groups. They did not have lawyers.”
Detainees, it continues, “were not allowed to bring village elders or witnesses to speak on their behalf or allowed to offer evidence that the allegations could be based on individual animosities or tribal rivalries. These prisoners had no meaningful way to challenge their detention. Former prisoners and Afghan government officials told Human Rights First that captures based on unreliable information have led to the wrongful detention of many individuals, which in turn creates friction between the Afghan people and the Afghan government as well as the U.S. military.”
The report continues: “In 2008 and in our follow-up visit to Afghanistan in 2009, we found that individuals transferred from U.S. to Afghan custody for prosecution in the Afghan National Defense Facility are tried in proceedings that fail to meet Afghan and international fair trial standards. Prosecutions were based on allegations and evidence provided by the United States, supplemented by investigations conducted by the Afghan intelligence agency, the National Directorate of Security (NDS),years after the initial capture. Although lawyers defend detainees at the ANDF, during the trials there were no prosecution witnesses,no out-of-court sworn prosecution witness statements, and little or no physical evidence presented to support the charges.”
Specifically, HRF recommends that the U.S. and Afghan governments enter into a public security agreement that sets forth the grounds and procedures for U.S. detentions consistent with international law. In order to avoid mistaken captures, the organization says, the U.S. must improve intelligence that results in detention. It must reduce the risk of arbitrary detentions by providing detainees sufficient ability to challenge their detention.
The U.S. must also work to increase the capacity of the Afghan authorities to handle detentions on their own by involving Afghan judges in a joint-U.S.-Afghan review body. The U.S. should establish more transparency for detention operations by facilitating access to detainees and to U.S. detention facilities by Afghan and international human rights organizations. And
the U.S. should strengthen the fairness of Afghan criminal prosecutions of those captured by the United States by providing resources and training to soldiers to assist them in information and evidence collection at point of capture.
Back in September, the Pentagon announced new detainee review board (DRB) procedures for the 600 detainees being held by the U.S. military at Bagram.
The new guidelines would assign a United States non-lawyer military official to each detainee. They would be tasked to gather exculpatory witnesses and evidence to present before review boards to be appointed by the U.S. military.
Currently, these detainees – some of whom have been imprisoned for more than six years – do not have access to lawyers and have no right to hear the allegations against them. Their status as "enemy combatants" is theoretically reviewed periodically by military panels, but critics say these reviews are incomplete, prejudiced, and ineffective.
Also announced were reforms outlined in General Stanley McChrystal's August 30th assessment on Afghanistan for both U.S. and Afghan prisons, focusing on rehabilitation and skills training of prisoners in order to prevent their radicalization, as well as on evidentiary concerns that hinder successful and fair prosecution of suspected insurgents transferred by international military forces to Afghan courts.
General McChrystal noted that "detention operations while critical to counterinsurgency operations, also have the potential to become a strategic liability for the U.S. and ISAF" and concluded that the "desired endstate" is to transfer all detention operations, including U.S., to the Afghan government provided it has the capacity to run these systems in accordance with international and national law.
"We are mindful of the significant challenges that lie ahead to accomplish the detention goals outlined by the Pentagon and we are gratified to see improved detainee review procedures replace ones that were unfair and detrimental to U.S. counterinsurgency goals. To win back support for its mission and cooperation of the Afghan people, the United States however, must enact further reforms to U.S. detention practices," said MuhammedAlly.
She said, "Given the lessons learned from Guantanamo, it is important that detention review procedures in Bagram must provide detainees a legal representative to ensure a meaningful mechanism for detainees to challenge their detention which the new procedures don’t provide."
"It is equally important to improve the reliability of information leading to capture of an individual in order to mitigate the risks of erroneous detentions, which the new procedures do not address, " she added.
MuhammedAlly called for independent, public monitoring of the implementation of the new procedures in order to assess their effectiveness.
HRF’s recommendations come as the newly created Joint Task Force 435 in Afghanistan undertakes its mission to oversee new detainee review procedures in Bagram and assess how to effectuate the "endstate" of transferring detention operations to the Afghan government. It also comes as the Obama Administration nears the end of its own policy review and prepares to announce its strategy for Afghanistan operations.
In September, human rights activists and legal experts reacted swiftly to disclosures that the U.S. government is planning to introduce new measures it claimed would give inmates at Afghanistan’s notorious Bagram prison more opportunities to challenge their detention.
Their views ranged from cautious optimism to total condemnation.
Tina Monshipour Foster, executive director of the International Justice Network (IJN), a legal advocacy group that represents four Bagram detainees in a pending federal court case, called the proposed changes "a step in the wrong direction."
She told us, "No set of procedures will have legitimacy until there is transparency and accountability for any violations of the military’s own rules. Preventing the accused from having contact with his lawyer is antithetical to any legitimate system of justice."
She said the first step should be to allow the detainees access to actual lawyers. Anything less, she added, "only invites rule-breaking and casts doubt over the legitimacy of any proceedings that may be going on behind closed doors."
"The ‘new’ procedures adopted by the Obama administration are not new at all; they appear to be exactly the same as the procedures created by the Bush administration in response to prior court challenges by Guantanamo detainees," she said.
David Frakt, a law professor at Western State University and former Guantanamo defense counsel, was skeptical that the administration’s new rules would work.
He told us, "The administration’s proposal to provide greater rights to detainees at Bagram reminds me of the Bush administration’s woefully inadequate Combatant Status Review Tribunal (CSRT) process for detainees at Guantanamo, which has been suspended by the Obama administration after serious criticism by the Supreme Court."
He said, "The most obvious flaw with the proposed process is the failure to provide counsel to the detainees. Instead, the administration proposes to assign officers with no special expertise to serve as the detainees’ representative. This model was a complete failure for the CSRTs and should not be repeated."
He added," It is simply unrealistic to expect non-lawyers to zealously advocate on behalf of the detainees, or to be effective in gathering witnesses and evidence to challenge the lawfulness of the detention."
In April, the American Civil Liberties Union (ACLU) filed a Freedom of Information Act (FOIA) request asking the Obama administration to make public records pertaining to the detention and treatment of prisoners held at Bagram. The government has not yet turned over the records.
Melissa Goodman, a staff attorney with the ACLU National Security Project, said that while she found the proposed new guidelines "encouraging," she remains concerned about the level of secrecy that surrounds Bagram.
"The public remains uninformed of basic facts such as who is imprisoned there, how long they have been held, where they were captured, and on what grounds they are being subjected to indefinite detention," she noted.
"The government should make public documents that could shed light on this crucial information about the detention and treatment of prisoners at Bagram," she said.
Chip Pitts, a lecturer at the Stanford University law school and president of the Bill of Rights Defense Committee, also expressed skepticism.
He told us, "Whatever the new rules say, it’s crucial that they distinguish between classical and legitimate conflicts where the rules of war apply, and the continuing attempt to encompass all counterterrorism within the illegitimate, overbroad, so-called ‘war on terror’ framework that wrongly disregards fundamental rights of civilians who are not active on actual battlefields."
While it is unclear how soon the Pentagon’s new guidelines will be implemented – largely because of lack of personnel – they appear to have been announced with some sense of urgency. The probable reason is that the Obama administration is preparing to appeal a federal judge’s ruling in April that some Bagram prisoners brought in from outside Afghanistan have a right to challenge their imprisonment.
In that decision, a federal district judge, John D. Bates, ruled that three detainees at Bagram had the same legal rights that the Supreme Court last year granted to prisoners held at Guantánamo Bay, because they were captured outside Afghanistan and taken to Bagram, where they have been held for more than six years without trials.
The two Yemenis and a Tunisian want a civilian judge to review the evidence against them and order their release, under the constitutional right of habeas corpus.
Chip Pitts supports their position. He told us, "Judge Bates’ decision laudably made that distinction, and, rather than fight it, the Obama administration should take the opportunity to restore sensible and moral rules in keeping with nearly a millennium of legal evolution."
"These would recognize that civilians have a right to habeas corpus, that combatants on true battlefield situations have a right to article V hearings under the Geneva Conventions, and that places like Bagram shouldn’t be manipulated to simply form new Guantanamos or law-free zones," Pitts said.
There are some 600-plus prisoners being held at Bagram. Critics charge that President Barack Obama has been turning Bagram into “a new Guantanamo,” since terror suspects are no longer being sent to the prison in Cuba because of plans to close it in January.
Military Commissions Create “Second-Class” Justice System, Lawyers Charge
By William Fisher
Critics of President Obama’s changes to the regulations governing military commissions are characterizing these changes as “cosmetic improvements,” amid a growing consensus among human rights organizations that these tribunals are designed to produce convictions while trials in civilian courts are far more likely to produce justice.
This is the emerging view, not only from outside advocates opposed to the Bush-era tribunals, but also of many of the military judges, prosecutors and defense attorneys who have seen from the inside how the Commissions have worked – or failed to work – over the past eight years.
One of these is Air Force Reserve Lt. Col. David Frakt, who resigned his post as a defense lawyer for a Guantanamo prisoner, and enjoys a high degree of credibility because of the unique experience he has had.
We spoke extensively with Frakt via email. He told us. “Clearly, the new military commissions are a significant improvement, at least on paper, over the previous incarnations. The revisions to the hearsay rules and the establishment of a voluntariness standard for the admissibility of statements are the two most significant improvements.”
However, he added, “The military commissions are still fundamentally flawed in a number of respects. First, there is no requirement of any pretrial investigation, such as a preliminary hearing or grand jury. Second, there is no derivative evidence rule, or ‘fruit of the poisonous tree’ doctrine, so even if coerced statements themselves may be inadmissible, evidence derived from those coerced statements may still be admitted into evidence. Third, the MCA still authorizes the trial of detainees for a variety of offenses that are not traditional war crimes, including material support to terrorism, terrorism, conspiracy, and the invented offense of murder in violation of the law war. Fourth, juveniles may still be subject to trial by military commission.”
Frakt concludes that “Military commissions are wholly unnecessary. There are virtually no examples of true war crimes committed by detainees during the armed conflict that started after 9/11. Almost all the offenses relate either to pre 9-11 activity and involve material support to terrorism, conspiracy and terrorism. These offenses can be effectively tried in federal courts.”
Col. Frakt continues: “Now that that the evidentiary rules in military commissions have been tightenened to more closely resemble the rules in federal courts, the real reason for the creation of military commissions - the ability to gain easy convictions on tainted evidence - has largely been removed. But the taint of the original process still lingers. The perception that the military commissions are a second-class option remains.”
Frakt referenced an amendment South Carolina Republican Senator Lyndsey Graham sought to insert into the bill. Graham commented that people who are terrorists who don't deserve full Constitutional rights. Col. Frakt responds by charging that Graham “is clearly prejudging the cases and affording a presumption of guilt, not innocence. The Constitution sets forth the minimum due process that we believe is necessary to ensure a fair trial. Why would we ever want to go below that?”
Frakt concludes that “the criteria for determining which cases go to commissions and which to federal courts make no sense. Basically, the cases will go to federal court is the Justice Department wants the case and thinks they can prove it, and the rest of the cases will go to the military commissions. This is further proof that the commissions are a second-class option.”
Frakt speaks from first-hand experience. He served as an Air Force officer and military defense counsel with the Office of Military Commissions. During that time, he called the original military commissions “a catastrophic failure.” He was defense counsel for a young GITMO prisoner, Mohammed Jawad, who was released this summer to his home in Afghanistan after years in confinement when a military judge ruled his confession was coerced. Frakt has returned to his work as a professor at Western State University College of Law in Fullerton, California.
And he is not alone in condemning the military commissions. Frakt’s former adversary in the Military Commissions, the prosecutor, Lt. Col. Darrel Vandeveld, resigned in September 2008. He told a congressional committee that the Commissions were “broken beyond repair,” and “cannot be fixed, because their very creation — and the only reason to prefer military commissions over federal criminal courts for the Guantánamo detainees — can now be clearly seen as an artifice, a contrivance, to try to obtain prosecutions based on evidence that would not be admissible in any civilian or military prosecution anywhere in our nation.”
Vandeveld declared the Commission system unable to deliver justice, and explained how he had gone from being a “true believer to someone who felt truly deceived,
In October and November 2008, his military judge, Army Col. Stephen Henley, refused to accept the confessions made by Jawad shortly after his capture (both in Afghan and US custody), because they had been extracted through threats of torture.
This dramatic assertion was made in a statement by Lt. Col. Vandeveld in January of this year in connection with Jawad’s habeas claim. His lawyers had discovery that Jawad may have been as young as 12 when he was first seized.
This disclosure produced yet another crisis for the Commission system, when an exasperated federal judge condemned the Justice Department for its persistent obstruction, and repeatedly stressed that the government did not have a single reliable witness, and that the case was “lousy,” “in trouble,” “unbelievable,” and “riddled with holes,” and statements to a Senate and House Committee in July by Vandeveld and Frakt.
The positions taken by both men dropped like an A-bomb on the uniformed military, the civilian leadership at the Pentagon, the Congress and the White House.
But these positions should have come as no surprise. Perhaps the element that was unique was agreement involving both the prosecutor and the defense counsel in the same single case.
Lt. Col. Frakt testified before a Congressional Committee as an expert witness, being an experienced lawyer who studied the Military Commissions Act of 2006 in depth and served on the Commissions from April 2008 as a military defense attorney for two prisoners, Mohamed Jawad and Ali Hamza al-Bahlul.
The view he expressed was that the MCA should be repealed and trials held in federal courts, which have a proven track record of dealing with cases related to terrorism. However, as he is pragmatic enough to realize that this may not happen, he provided the Committee with eleven detailed revisions to the MCA, which should be followed if, as anticipated, everyone involved in the decision-making process continues to believe that the tainted Commissions will be able to deliver justice.
Lt. Col. Frakt told Congress, “As we ponder the questions before us, I think it is important to review where we are now and how we got to this point.”
“One point on which all sides should be able to agree is that the military
commissions of the Bush administration were a catastrophic failure. The military commissions clearly failed to achieve their intended purpose. After more than seven years and hundreds of millions of dollars wasted, the military commissions yielded only three convictions, all of relatively minor figures. Not a single terrorist responsible for the planning or execution of a terrorist attack against the United States was convicted.
Two of the convicted, David Hicks and Salim Hamdan, received sentences of less than one year and were subsequently released. The third trial, of my client Mr. al-Bahlul [Ali Hamza al-Bahlul], though yielding a life sentence, was far from a triumph for the military commissions.
“There were several problematic aspects of this trial, not the least of which was the fact that several members of Mr. Hicks’ jury were actually recycled for this military commission. More disturbing was the denial of Mr. al-Bahlul’s statutory right of self-representation. Mr. Al-Bahlul, a low-level al-Qaeda media specialist, wanted to represent himself before the military commissions and this request was granted by the military judge at the arraignment, Army Colonel Peter Brownback. Soon thereafter, Col. Brownback was involuntarily retired from Army and replaced. The new judge revoked Mr. al-Bahlul’s pro se status, although he knew that Mr. al-Bahlul had refused to authorize me, his appointed military defense counsel, to represent him. As a result, there was no defense presented; Mr. al-Bahlul was convicted of all charges and received the maximum life sentence.
“Why, with the entire resources of the Department of Defense, the Justice
Department and the national intelligence apparatus at their disposal, were the military commissions such an abysmal failure? The answer is simple: the military commissions were built on a foundation of legal distortions and outright illegality.”
“The rules, procedures and substantive law created for the commissions were the product of, or were necessitated by, the wholesale abandonment of the rule of law by the Bush administration in the months after 9/11. In the United States of America, any such legal scheme is ultimately doomed to fail,” Frakt said.
Frakt and Vandeveld were not the first the first – nor are they likely to be the last – to speak out in opposition to the use of Military Commissions. Earlier in the GITMO kabuki theater spectacle, a young Naval officer named Charles D. Swift gained national notoriety by pushing back against the Pentagon powers that be.
Swift was a Lieutenant Commander in the Judge Advocate General's Corps and Visiting Associate Professor of Law at Emory University School of Law. He served as defense counsel for Salim Ahmed Hamdan, a former driver for Osama bin Laden captured during the invasion of Afghanistan. Hamdan was charged in July 2004 with conspiracy to commit terrorism.
As Hamdan's legal counsel, Swift, together with the Seattle law firm of Perkins Coie and Georgetown Law Professor Neal Katyal, appealed Hamdan's writ of habeas corpus petition to the U. S. Supreme Court.
In Hamdan v. Rumsfeld, the justices ultimately held that the military commission to try Salim Hamdan was illegal and violated the Geneva Conventions as well as the United States Uniform Code of Military Justice (UCMJ).
Ultimately, Swift was passed over (the second time) for promotion because the Navy said he failed to have the diversity of experience required of Navy judge advocates and had to retire under the military's "up or out" promotion system which mandates retirement for officers passed over twice. But other informed sources contend Swift was released because of his Hamdan defense. Swift has said he learned of being passed over two weeks after the Supreme Court decided in Hamdan's favor.
Hamdan was but one of many judicial rebukes to President George W. Bush’s detention plans. In Hamdan, the High Court held that the military commissions set up by the Bush administration to try detainees at Guantanamo Bay lacked "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949."
Specifically, the ruling says that Common Article 3 of the Geneva Conventions was violated.
In another case, Hamdi v. Rumsfeld, the Supreme Court reversed the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant". The Court recognized the power of the government to detain unlawful combatants, but ruled that detainees who are U.S. citizens must have the ability to challenge their detention before an impartial judge.
Earlier, in 2004, the Supreme Court held in Rasul v. Bush, that the nearly-600 men imprisoned by the U.S. government in Guantanamo Bay, Cuba had a right of access to the federal courts, via habeas corpus and otherwise, to challenge their detention and conditions of confinement.
Subsequent to this decision, the habeas petitions were remanded to the district court for further proceedings. Immediately after the Supreme Court's decision in Rasul, 11 new habeas petitions were filed in the United States District Court for the District of Columbia on behalf of over 70 detainees. These cases eventually became the consolidated cases of Al Odah v. United States and Boumediene v. Bush, the leading cases determining the significance of the Supreme Court's decision in Rasul, the rights of non-citizens to challenge the legality of their detention in an offshore U.S. military base, and the constitutionality of the Military Commissions Act of 2006.
Moreover, the list continues to grow under Presdident Barack Obama. The high court has accepted a request to hear a case from 13 ethnic Uighur (Chinese Muslim) GITMO inmates who are petitioning for release to the United States, contrary to a measure voted last week by the House of Representatives permitting the transfer of prisoners to the US for trial, but explicitly forbidding their release to the US.
The legislation requires an assessment of potential security risks, including what dangers are involved, how the threat can be diminished, legal arguments and assurances about the detainee's level of risk to the relevant state governor, to be provided 45 days prior to prosecution in the US. Under these measures, the President must provide Congress with the detainee's name, destination, a risk assessment, and transfer terms in order to release them to another country.
Some of the Uighurs are still being detained while the government has found countries prepared to relocate others. A federal judge ruled in February that they be released to the US. However an appeals court overturned the decision in February saying that only the executive branch, not federal judges, had jurisdiction on immigration matters.
In addition to the cases on their way to the Supreme Court, dozens of habeas corpus petitions have been filed, but not yet heard, in Federal Court in Washington, D.C.
Observers of the military tribunals process are predicting that the new amendments may do little to insulate the Commissions from multiple legal challenges. In the past, these challenges have virtually stopped the proceedings at GITMO and have, in large part, been responsible for only three trials being held there in eight years.
One of the more persistent GITMO-watchers since the first prisoners arrived there is Chip Pitts, President of the Bill of Rights Defense Committee, and a lecturer at the Stanford University law school.
Here’s his take-away from this week’s developments.
He told us: “Without gainsaying the undoubted improvements contained in Obama’s military commissions created by the National Defense Authorization Act (NDAA), including an overdue prohibition on use of most (but not all) evidence obtained by coercion, the problem with continuing the unnecessary and suspect Bush-era military commissions in any form is that they perpetuate an overbroad, second-tier system of justice.
“Especially when taken together with continued recourse to novel definitions of ‘war crimes’, indefinite detention, and refusal to prosecute higher-ups who authorized torture, such derogations from the rule of law blatantly violate international human rights and constitutional due process and equal protection: they’ll be used only in a discriminatory fashion, for non-citizens (even some who were children at the time) against whom the evidence is insufficient to try them in the regular U.S. courts that, unlike the military commissions, have a good record of successfully trying terrorists.
“Such a discriminatory, second-tier system of justice not only calls into question the outcomes reached, but will inevitably spill over to taint the U.S. justice system as a whole and continue to tarnish the country’s reputation and soft power – and the nation’s ability to achieve both its human rights goals and its other vital interests in the world.
“It is way past time to reject the discriminatory, disproven, xenophobic, demagogic, and counterproductive notions driving such policy mistakes, including above all the now indisputably wrong idea that the hopelessly overbroad ‘endless global war on terror’ framework can somehow yield better decisions and results than the proven legal approaches that carefully and pragmatically evolved over the last 1000 years as the best ways to produce truth with justice,” he told us.
Critics of President Obama’s changes to the regulations governing military commissions are characterizing these changes as “cosmetic improvements,” amid a growing consensus among human rights organizations that these tribunals are designed to produce convictions while trials in civilian courts are far more likely to produce justice.
This is the emerging view, not only from outside advocates opposed to the Bush-era tribunals, but also of many of the military judges, prosecutors and defense attorneys who have seen from the inside how the Commissions have worked – or failed to work – over the past eight years.
One of these is Air Force Reserve Lt. Col. David Frakt, who resigned his post as a defense lawyer for a Guantanamo prisoner, and enjoys a high degree of credibility because of the unique experience he has had.
We spoke extensively with Frakt via email. He told us. “Clearly, the new military commissions are a significant improvement, at least on paper, over the previous incarnations. The revisions to the hearsay rules and the establishment of a voluntariness standard for the admissibility of statements are the two most significant improvements.”
However, he added, “The military commissions are still fundamentally flawed in a number of respects. First, there is no requirement of any pretrial investigation, such as a preliminary hearing or grand jury. Second, there is no derivative evidence rule, or ‘fruit of the poisonous tree’ doctrine, so even if coerced statements themselves may be inadmissible, evidence derived from those coerced statements may still be admitted into evidence. Third, the MCA still authorizes the trial of detainees for a variety of offenses that are not traditional war crimes, including material support to terrorism, terrorism, conspiracy, and the invented offense of murder in violation of the law war. Fourth, juveniles may still be subject to trial by military commission.”
Frakt concludes that “Military commissions are wholly unnecessary. There are virtually no examples of true war crimes committed by detainees during the armed conflict that started after 9/11. Almost all the offenses relate either to pre 9-11 activity and involve material support to terrorism, conspiracy and terrorism. These offenses can be effectively tried in federal courts.”
Col. Frakt continues: “Now that that the evidentiary rules in military commissions have been tightenened to more closely resemble the rules in federal courts, the real reason for the creation of military commissions - the ability to gain easy convictions on tainted evidence - has largely been removed. But the taint of the original process still lingers. The perception that the military commissions are a second-class option remains.”
Frakt referenced an amendment South Carolina Republican Senator Lyndsey Graham sought to insert into the bill. Graham commented that people who are terrorists who don't deserve full Constitutional rights. Col. Frakt responds by charging that Graham “is clearly prejudging the cases and affording a presumption of guilt, not innocence. The Constitution sets forth the minimum due process that we believe is necessary to ensure a fair trial. Why would we ever want to go below that?”
Frakt concludes that “the criteria for determining which cases go to commissions and which to federal courts make no sense. Basically, the cases will go to federal court is the Justice Department wants the case and thinks they can prove it, and the rest of the cases will go to the military commissions. This is further proof that the commissions are a second-class option.”
Frakt speaks from first-hand experience. He served as an Air Force officer and military defense counsel with the Office of Military Commissions. During that time, he called the original military commissions “a catastrophic failure.” He was defense counsel for a young GITMO prisoner, Mohammed Jawad, who was released this summer to his home in Afghanistan after years in confinement when a military judge ruled his confession was coerced. Frakt has returned to his work as a professor at Western State University College of Law in Fullerton, California.
And he is not alone in condemning the military commissions. Frakt’s former adversary in the Military Commissions, the prosecutor, Lt. Col. Darrel Vandeveld, resigned in September 2008. He told a congressional committee that the Commissions were “broken beyond repair,” and “cannot be fixed, because their very creation — and the only reason to prefer military commissions over federal criminal courts for the Guantánamo detainees — can now be clearly seen as an artifice, a contrivance, to try to obtain prosecutions based on evidence that would not be admissible in any civilian or military prosecution anywhere in our nation.”
Vandeveld declared the Commission system unable to deliver justice, and explained how he had gone from being a “true believer to someone who felt truly deceived,
In October and November 2008, his military judge, Army Col. Stephen Henley, refused to accept the confessions made by Jawad shortly after his capture (both in Afghan and US custody), because they had been extracted through threats of torture.
This dramatic assertion was made in a statement by Lt. Col. Vandeveld in January of this year in connection with Jawad’s habeas claim. His lawyers had discovery that Jawad may have been as young as 12 when he was first seized.
This disclosure produced yet another crisis for the Commission system, when an exasperated federal judge condemned the Justice Department for its persistent obstruction, and repeatedly stressed that the government did not have a single reliable witness, and that the case was “lousy,” “in trouble,” “unbelievable,” and “riddled with holes,” and statements to a Senate and House Committee in July by Vandeveld and Frakt.
The positions taken by both men dropped like an A-bomb on the uniformed military, the civilian leadership at the Pentagon, the Congress and the White House.
But these positions should have come as no surprise. Perhaps the element that was unique was agreement involving both the prosecutor and the defense counsel in the same single case.
Lt. Col. Frakt testified before a Congressional Committee as an expert witness, being an experienced lawyer who studied the Military Commissions Act of 2006 in depth and served on the Commissions from April 2008 as a military defense attorney for two prisoners, Mohamed Jawad and Ali Hamza al-Bahlul.
The view he expressed was that the MCA should be repealed and trials held in federal courts, which have a proven track record of dealing with cases related to terrorism. However, as he is pragmatic enough to realize that this may not happen, he provided the Committee with eleven detailed revisions to the MCA, which should be followed if, as anticipated, everyone involved in the decision-making process continues to believe that the tainted Commissions will be able to deliver justice.
Lt. Col. Frakt told Congress, “As we ponder the questions before us, I think it is important to review where we are now and how we got to this point.”
“One point on which all sides should be able to agree is that the military
commissions of the Bush administration were a catastrophic failure. The military commissions clearly failed to achieve their intended purpose. After more than seven years and hundreds of millions of dollars wasted, the military commissions yielded only three convictions, all of relatively minor figures. Not a single terrorist responsible for the planning or execution of a terrorist attack against the United States was convicted.
Two of the convicted, David Hicks and Salim Hamdan, received sentences of less than one year and were subsequently released. The third trial, of my client Mr. al-Bahlul [Ali Hamza al-Bahlul], though yielding a life sentence, was far from a triumph for the military commissions.
“There were several problematic aspects of this trial, not the least of which was the fact that several members of Mr. Hicks’ jury were actually recycled for this military commission. More disturbing was the denial of Mr. al-Bahlul’s statutory right of self-representation. Mr. Al-Bahlul, a low-level al-Qaeda media specialist, wanted to represent himself before the military commissions and this request was granted by the military judge at the arraignment, Army Colonel Peter Brownback. Soon thereafter, Col. Brownback was involuntarily retired from Army and replaced. The new judge revoked Mr. al-Bahlul’s pro se status, although he knew that Mr. al-Bahlul had refused to authorize me, his appointed military defense counsel, to represent him. As a result, there was no defense presented; Mr. al-Bahlul was convicted of all charges and received the maximum life sentence.
“Why, with the entire resources of the Department of Defense, the Justice
Department and the national intelligence apparatus at their disposal, were the military commissions such an abysmal failure? The answer is simple: the military commissions were built on a foundation of legal distortions and outright illegality.”
“The rules, procedures and substantive law created for the commissions were the product of, or were necessitated by, the wholesale abandonment of the rule of law by the Bush administration in the months after 9/11. In the United States of America, any such legal scheme is ultimately doomed to fail,” Frakt said.
Frakt and Vandeveld were not the first the first – nor are they likely to be the last – to speak out in opposition to the use of Military Commissions. Earlier in the GITMO kabuki theater spectacle, a young Naval officer named Charles D. Swift gained national notoriety by pushing back against the Pentagon powers that be.
Swift was a Lieutenant Commander in the Judge Advocate General's Corps and Visiting Associate Professor of Law at Emory University School of Law. He served as defense counsel for Salim Ahmed Hamdan, a former driver for Osama bin Laden captured during the invasion of Afghanistan. Hamdan was charged in July 2004 with conspiracy to commit terrorism.
As Hamdan's legal counsel, Swift, together with the Seattle law firm of Perkins Coie and Georgetown Law Professor Neal Katyal, appealed Hamdan's writ of habeas corpus petition to the U. S. Supreme Court.
In Hamdan v. Rumsfeld, the justices ultimately held that the military commission to try Salim Hamdan was illegal and violated the Geneva Conventions as well as the United States Uniform Code of Military Justice (UCMJ).
Ultimately, Swift was passed over (the second time) for promotion because the Navy said he failed to have the diversity of experience required of Navy judge advocates and had to retire under the military's "up or out" promotion system which mandates retirement for officers passed over twice. But other informed sources contend Swift was released because of his Hamdan defense. Swift has said he learned of being passed over two weeks after the Supreme Court decided in Hamdan's favor.
Hamdan was but one of many judicial rebukes to President George W. Bush’s detention plans. In Hamdan, the High Court held that the military commissions set up by the Bush administration to try detainees at Guantanamo Bay lacked "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949."
Specifically, the ruling says that Common Article 3 of the Geneva Conventions was violated.
In another case, Hamdi v. Rumsfeld, the Supreme Court reversed the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant". The Court recognized the power of the government to detain unlawful combatants, but ruled that detainees who are U.S. citizens must have the ability to challenge their detention before an impartial judge.
Earlier, in 2004, the Supreme Court held in Rasul v. Bush, that the nearly-600 men imprisoned by the U.S. government in Guantanamo Bay, Cuba had a right of access to the federal courts, via habeas corpus and otherwise, to challenge their detention and conditions of confinement.
Subsequent to this decision, the habeas petitions were remanded to the district court for further proceedings. Immediately after the Supreme Court's decision in Rasul, 11 new habeas petitions were filed in the United States District Court for the District of Columbia on behalf of over 70 detainees. These cases eventually became the consolidated cases of Al Odah v. United States and Boumediene v. Bush, the leading cases determining the significance of the Supreme Court's decision in Rasul, the rights of non-citizens to challenge the legality of their detention in an offshore U.S. military base, and the constitutionality of the Military Commissions Act of 2006.
Moreover, the list continues to grow under Presdident Barack Obama. The high court has accepted a request to hear a case from 13 ethnic Uighur (Chinese Muslim) GITMO inmates who are petitioning for release to the United States, contrary to a measure voted last week by the House of Representatives permitting the transfer of prisoners to the US for trial, but explicitly forbidding their release to the US.
The legislation requires an assessment of potential security risks, including what dangers are involved, how the threat can be diminished, legal arguments and assurances about the detainee's level of risk to the relevant state governor, to be provided 45 days prior to prosecution in the US. Under these measures, the President must provide Congress with the detainee's name, destination, a risk assessment, and transfer terms in order to release them to another country.
Some of the Uighurs are still being detained while the government has found countries prepared to relocate others. A federal judge ruled in February that they be released to the US. However an appeals court overturned the decision in February saying that only the executive branch, not federal judges, had jurisdiction on immigration matters.
In addition to the cases on their way to the Supreme Court, dozens of habeas corpus petitions have been filed, but not yet heard, in Federal Court in Washington, D.C.
Observers of the military tribunals process are predicting that the new amendments may do little to insulate the Commissions from multiple legal challenges. In the past, these challenges have virtually stopped the proceedings at GITMO and have, in large part, been responsible for only three trials being held there in eight years.
One of the more persistent GITMO-watchers since the first prisoners arrived there is Chip Pitts, President of the Bill of Rights Defense Committee, and a lecturer at the Stanford University law school.
Here’s his take-away from this week’s developments.
He told us: “Without gainsaying the undoubted improvements contained in Obama’s military commissions created by the National Defense Authorization Act (NDAA), including an overdue prohibition on use of most (but not all) evidence obtained by coercion, the problem with continuing the unnecessary and suspect Bush-era military commissions in any form is that they perpetuate an overbroad, second-tier system of justice.
“Especially when taken together with continued recourse to novel definitions of ‘war crimes’, indefinite detention, and refusal to prosecute higher-ups who authorized torture, such derogations from the rule of law blatantly violate international human rights and constitutional due process and equal protection: they’ll be used only in a discriminatory fashion, for non-citizens (even some who were children at the time) against whom the evidence is insufficient to try them in the regular U.S. courts that, unlike the military commissions, have a good record of successfully trying terrorists.
“Such a discriminatory, second-tier system of justice not only calls into question the outcomes reached, but will inevitably spill over to taint the U.S. justice system as a whole and continue to tarnish the country’s reputation and soft power – and the nation’s ability to achieve both its human rights goals and its other vital interests in the world.
“It is way past time to reject the discriminatory, disproven, xenophobic, demagogic, and counterproductive notions driving such policy mistakes, including above all the now indisputably wrong idea that the hopelessly overbroad ‘endless global war on terror’ framework can somehow yield better decisions and results than the proven legal approaches that carefully and pragmatically evolved over the last 1000 years as the best ways to produce truth with justice,” he told us.
Tuesday, November 10, 2009
Changes in Military Commissions Fail to Impress Rights Groups
By William Fisher
Human rights advocates and legal scholars are voicing sharp criticism of President Barack Obama’s revisions to the Bush administration’s Military Commissions Act of 2006, characterizing them as unnecessary and saying the new law will lead to further delays and create a system of “second-class justice.”
One powerful advocacy group, the American Civil Liberties Union (ACLU), called on the Obama administration to “abandon the fatally flawed military commissions system and, where evidence of terrorism crimes exists, try the Guantánamo detainees in federal courts.”
Said the Center for Constitutional Rights, an advocacy group that has mobilized dozens of lawyers to defend inmates at Guantanamo Bay, “The use of military commissions will only lead to further delays in a process already long overdrawn. Any new system will inherently fall prey to growing pains and missteps, and years of appeals after trial to sort through the new legal uncertainties created today. Fundamental aspects of the system, such as who may be tried before such commissions, remain vague.”
The group added that the new law “includes ‘conspiracy’ and ‘material support’ as war crimes, contradicting the Obama administration’s prior position that they did not qualify as offenses triable by military commission.”
President Obama signed the new bill into law this week, as part of the National Defense Authorization Act (NDAA).
Other critics of the new legislation were able to point to some improvements over the prior measure. One of them is David Frakt, who served as an Air Force officer and military defense counsel with the Office of Military Commissions. Lt. Col. Frakt, who called the original military commissions “a catastrophic failure,” was defense counsel for a young GITMO prisoner, Mohammed Jawad, who was released this summer to his home in Afghanistan after years in confinement after a military judge ruled his confession was coerced.
Frakt, who has returned to his work as a professor at Western State University College of Law in Fullerton, California, told IPS, “Clearly, the new military commissions are a significant improvement, at least on paper, over the previous incarnations. The revisions to the hearsay rules and the establishment of a voluntariness standard for the admissibility of statements are the two most significant improvements.”
However, he added, “The military commissions are still fundamentally flawed in a number of respects. First, there is no requirement of any pretrial investigation, such as a preliminary hearing or grand jury. Second, there is no derivative evidence rule, or ‘fruit of the poisonous tree’ doctrine, so even if coerced statements themselves may be inadmissible, evidence derived from those coerced statements may still be admitted into evidence. Third, the MCA still authorizes the trial of detainees for a variety of offenses that are not traditional war crimes, including material support to terrorism, terrorism, conspiracy, and the invented offense of murder in violation of the law of war. Fourth, juveniles may still be subject to trial by military commission.”
Frakt said military commissions “are wholly unnecessary.” He told IPS, “Now that that the evidentiary rules in military commissions have been tightenened to more closely resemble the rules in federal courts, the real reason for the creation of military commissions -- the ability to gain easy convictions on tainted evidence -- has largely been removed. But the taint of the original process still lingers. The perception that the military commissions are a second-class option remains.”
Frakt cited remarks made by Sen. Lindsay Graham, a Republican from South Carolina, a leading proponent of military commissions. Frakt said, “Comments that these people are terrorists who don't deserve full Constitutional rights reinforces this idea. (Sen. Graham) is clearly prejudging the cases and affording a presumption of guilt, not innocence. The Constitution sets forth the minimum due process that we believe is necessary to ensure a fair trial. Why would we ever want to go below that?”
He said, “The criteria for determining which cases go to commissions and which to federal courts make no sense. Basically, the cases will go to federal court if the Justice Department wants the case and thinks they can prove it, and the rest of the cases will go to the military commissions. This is further proof that the commissions are a second-class option.”
An amendment to the law introduced by Sen. Graham would have blocked transfer of alleged 9/11 planners to federal criminal court. It was defeated 54-45. Christopher Anders, Senior Legislative Counsel for the American Civil Liberties Union (ACLU), told IPS he regarded this as “a big win.”
He said, “Thankfully the Senate has made the right decision by not tying the president’s hands when it comes to prosecuting detainees. Making it more difficult to prosecute detainees in our federal courts only serves to delay bringing them to justice.” He pointed out that the U.S. has successfully tried nearly 200 international terrorism defendants in federal courts since 9/11. “We have an American system of justice that works, and there is no reason not to use it,” he said.
The military commissions created by President Bush after the 9/11 attacks and subsequently authorized by Congress tried only three cases.
Others were equally scathing in their criticism of the new commissions. Francis Boyle, a law professor at the University of Illinois, characterized the commissions as “Obama's Kangaroo Courts.”
He told IPS, “The Gitmo Kangaroo Courts constitute war crimes under the Laws of War, the Four Geneva Conventions of 1949, and even the U. S. Army's own Field Manual.”
And Gabor Rona, international legal director of Human Rights First, told IPS, “The assertion that regular courts are for regular crimes and military commissions are for war crimes is false. If it were true, then why do we have a War Crimes Statute that creates jurisdiction in our federal courts?”
He added, “I'm particularly struck by this disconnect: the Task Force (appointed by President Obama) recognizes the historic limitation for use of military commissions, namely situations of ‘military necessity,’ which is properly understood as, for example, in situations of occupation where the usual mechanisms of justice are not operating. But then, despite acknowledging the success of federal court terrorism prosecutions, the Task Force sets out a series of considerations for deciding whether to send a case to military commission without due regard for the fact that federal courts are open and operating.”
Critics also pointed out what they termed other deficiencies in the new law. For example, they point out, the new bill also fails to include a sunset provision, making the system a permanent part of President Obama’s legacy.
Center for Constitutional Rights Executive Director Vincent Warren yesterday made the point even more starkly: “These are now President Obama’s military commissions: he owns them and all of the problems that come with them, and their inevitable failure will scar his legacy and embolden our critics in the world. Military commissions are an unnecessary, jury-rigged creation, second-rate in comparison to our legal system. Obama is tinkering with the Constitution for no good reason.”
The Obama administration is expected to announce its plans for prosecuting a number of Guantánamo detainees either in federal courts or before the Guantánamo military commissions by November 16. Several news organizations have reported that alleged 9/11 planners will likely be sent to federal criminal courts to be prosecuted by the Justice Department.
Human rights advocates and legal scholars are voicing sharp criticism of President Barack Obama’s revisions to the Bush administration’s Military Commissions Act of 2006, characterizing them as unnecessary and saying the new law will lead to further delays and create a system of “second-class justice.”
One powerful advocacy group, the American Civil Liberties Union (ACLU), called on the Obama administration to “abandon the fatally flawed military commissions system and, where evidence of terrorism crimes exists, try the Guantánamo detainees in federal courts.”
Said the Center for Constitutional Rights, an advocacy group that has mobilized dozens of lawyers to defend inmates at Guantanamo Bay, “The use of military commissions will only lead to further delays in a process already long overdrawn. Any new system will inherently fall prey to growing pains and missteps, and years of appeals after trial to sort through the new legal uncertainties created today. Fundamental aspects of the system, such as who may be tried before such commissions, remain vague.”
The group added that the new law “includes ‘conspiracy’ and ‘material support’ as war crimes, contradicting the Obama administration’s prior position that they did not qualify as offenses triable by military commission.”
President Obama signed the new bill into law this week, as part of the National Defense Authorization Act (NDAA).
Other critics of the new legislation were able to point to some improvements over the prior measure. One of them is David Frakt, who served as an Air Force officer and military defense counsel with the Office of Military Commissions. Lt. Col. Frakt, who called the original military commissions “a catastrophic failure,” was defense counsel for a young GITMO prisoner, Mohammed Jawad, who was released this summer to his home in Afghanistan after years in confinement after a military judge ruled his confession was coerced.
Frakt, who has returned to his work as a professor at Western State University College of Law in Fullerton, California, told IPS, “Clearly, the new military commissions are a significant improvement, at least on paper, over the previous incarnations. The revisions to the hearsay rules and the establishment of a voluntariness standard for the admissibility of statements are the two most significant improvements.”
However, he added, “The military commissions are still fundamentally flawed in a number of respects. First, there is no requirement of any pretrial investigation, such as a preliminary hearing or grand jury. Second, there is no derivative evidence rule, or ‘fruit of the poisonous tree’ doctrine, so even if coerced statements themselves may be inadmissible, evidence derived from those coerced statements may still be admitted into evidence. Third, the MCA still authorizes the trial of detainees for a variety of offenses that are not traditional war crimes, including material support to terrorism, terrorism, conspiracy, and the invented offense of murder in violation of the law of war. Fourth, juveniles may still be subject to trial by military commission.”
Frakt said military commissions “are wholly unnecessary.” He told IPS, “Now that that the evidentiary rules in military commissions have been tightenened to more closely resemble the rules in federal courts, the real reason for the creation of military commissions -- the ability to gain easy convictions on tainted evidence -- has largely been removed. But the taint of the original process still lingers. The perception that the military commissions are a second-class option remains.”
Frakt cited remarks made by Sen. Lindsay Graham, a Republican from South Carolina, a leading proponent of military commissions. Frakt said, “Comments that these people are terrorists who don't deserve full Constitutional rights reinforces this idea. (Sen. Graham) is clearly prejudging the cases and affording a presumption of guilt, not innocence. The Constitution sets forth the minimum due process that we believe is necessary to ensure a fair trial. Why would we ever want to go below that?”
He said, “The criteria for determining which cases go to commissions and which to federal courts make no sense. Basically, the cases will go to federal court if the Justice Department wants the case and thinks they can prove it, and the rest of the cases will go to the military commissions. This is further proof that the commissions are a second-class option.”
An amendment to the law introduced by Sen. Graham would have blocked transfer of alleged 9/11 planners to federal criminal court. It was defeated 54-45. Christopher Anders, Senior Legislative Counsel for the American Civil Liberties Union (ACLU), told IPS he regarded this as “a big win.”
He said, “Thankfully the Senate has made the right decision by not tying the president’s hands when it comes to prosecuting detainees. Making it more difficult to prosecute detainees in our federal courts only serves to delay bringing them to justice.” He pointed out that the U.S. has successfully tried nearly 200 international terrorism defendants in federal courts since 9/11. “We have an American system of justice that works, and there is no reason not to use it,” he said.
The military commissions created by President Bush after the 9/11 attacks and subsequently authorized by Congress tried only three cases.
Others were equally scathing in their criticism of the new commissions. Francis Boyle, a law professor at the University of Illinois, characterized the commissions as “Obama's Kangaroo Courts.”
He told IPS, “The Gitmo Kangaroo Courts constitute war crimes under the Laws of War, the Four Geneva Conventions of 1949, and even the U. S. Army's own Field Manual.”
And Gabor Rona, international legal director of Human Rights First, told IPS, “The assertion that regular courts are for regular crimes and military commissions are for war crimes is false. If it were true, then why do we have a War Crimes Statute that creates jurisdiction in our federal courts?”
He added, “I'm particularly struck by this disconnect: the Task Force (appointed by President Obama) recognizes the historic limitation for use of military commissions, namely situations of ‘military necessity,’ which is properly understood as, for example, in situations of occupation where the usual mechanisms of justice are not operating. But then, despite acknowledging the success of federal court terrorism prosecutions, the Task Force sets out a series of considerations for deciding whether to send a case to military commission without due regard for the fact that federal courts are open and operating.”
Critics also pointed out what they termed other deficiencies in the new law. For example, they point out, the new bill also fails to include a sunset provision, making the system a permanent part of President Obama’s legacy.
Center for Constitutional Rights Executive Director Vincent Warren yesterday made the point even more starkly: “These are now President Obama’s military commissions: he owns them and all of the problems that come with them, and their inevitable failure will scar his legacy and embolden our critics in the world. Military commissions are an unnecessary, jury-rigged creation, second-rate in comparison to our legal system. Obama is tinkering with the Constitution for no good reason.”
The Obama administration is expected to announce its plans for prosecuting a number of Guantánamo detainees either in federal courts or before the Guantánamo military commissions by November 16. Several news organizations have reported that alleged 9/11 planners will likely be sent to federal criminal courts to be prosecuted by the Justice Department.
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