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).
Wednesday, November 11, 2009
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.
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