By William Fisher
Charging that the U.S. government was complicit in the forced disappearance of an influential Muslim scholar four years ago, human rights groups in the U.S., the U.K., and Switzerland have asked the U.N. to investigate.
In a letter to the U.N., the organizations say Mustafa Setmariam Nassar, a Spanish citizen, was arrested by Pakistani officials and handed over to U.S. officials in October 2005 and has not been heard from since.
The letter was sent to the U.N. Special Rapporteur on Torture, Manfred Nowak, the U.N. Special Rapporteur on the Promotion of Human Rights While Countering Terrorism, Martin Scheinin, and the U.N. Working Group on Enforced or Involuntary Disappearances. It was signed by the American Civil Liberties Union (ACLU), the London-based legal charity Reprieve, and Alkarama in Geneva.
In June 2009, in response to an ACLU request for information about Nassar's whereabouts, the U.S. Central Intelligence Agency (CIA) said it could "neither confirm nor deny the existence or nonexistence of records" concerning Nassar.
Steven M. Watt, staff attorney with the ACLU Human Rights Program, told us, “Mr. Nassar's wife and children just want to know if he is still alive and where he is." He said that "Requests for information about his forced disappearance, nearly four years ago, have been ignored by the U.S. government, and his family now has no other choice but to turn to the international community for assistance in their quest.”
He added, “The CIA should be held accountable. It should allow his family to know what happened to him and where he is. Or deny that it had any involvement in his disappearance."
The letter asks the U.N. to raise Nassar's case with the U.S. government and other governments that may have assisted the U.S. in Nassar's disappearance or may have information that could assist in locating him.
The organizations acknowledge that information about Nassar's disappearance is scarce. But they say “the known details suggest he was a victim of the unlawful extraordinary rendition" program, which enabled the U.S., with the assistance of other governments, to kidnap and transport foreign nationals suspected of terrorism to secret overseas detention facilities for interrogation and torture.
Official U.S. documents and media reports indicate that the U.S. had long been interested in capturing Nassar, suspecting him of involvement in certain terrorist acts but never charging him with a crime. In January 2005, months before his reported capture in Pakistan, the U.S. Embassy in Pakistan announced a $5 million reward for information leading to Nassar's capture, which was withdrawn around the time of his reported capture.
The U.S. National Counterterrorism Center confirms Nassar's capture in November 2005, and media reports indicate that Nassar was later held for a time at a U.S. military base on the British-owned island of Diego Garcia in the Indian Ocean.
The Reprieve group also demanded the British government reveal details of the secret illegal detention of what it called the ‘ghost’ prisoner on Diego Garcia.
Reprieve says Nassar was sent to Syria, where he was “held incommunicado in shocking conditions and almost certainly tortured.”
The group added, “The U.K. shares responsibility for Nasser’s disappearance because of its complicity in his ‘ghost’ detention on the Diego Garcia and elsewhere.
It has written to the U.K. government on behalf of Nasser’s wife to “demand the U.K. fulfils its legal obligation to investigate his disappearance.”
Reprieve’s Director, Clive Stafford Smith, said: “Enforced disappearance is a crime most associated with ruthless South American dictatorships, yet here we have the U.S. and British governments embroiled in the same dirty deeds. Kidnapping is a crime in anyone’s language, and it is about time that powerful governments are held to account for their crime against Mustafa Nasser.”
Diego Garcia has featured prominently in at least two other current cases. In one, Reprieve is suing the U.K. government on behalf of British resident Binyam Mohamed, a recently released Guantanamo detainee, for allowing the island’s airbase to be used to facilitate Mohammed’s “rendition,” by landing to refuel.
Mohammed was first rendered from Pakistan to prison in Morocco, and finally to Guantanamo. The group claims he was tortured in all three locations.
David Miliband, the British Foreign Secretary, has argued before the U.K. High Court that it must suppress evidence of torture because the U.S. has threatened to discontinue sharing intelligence with the British if it discloses such evidence. The specific evidence in this case is a seven-paragraph document that Reprieve says has no intelligence or national security value but includes American admissions that they tortured Mohammed.
The High Court Justices said that such a threat was not based in law. "I mean, it is an exercise of naked political power," Lord Justice Thomas said, adding, "That is not constitutional, it is the use of naked political power." Under British law, it is a criminal offence to suppress evidence of torture.
In the second case, Mohammed and four other now-released Guantanamo detainees are suing a Boeing Company subsidiary, Jeppesen Dataplan, for knowingly assisting in Mohammed’s rendition by providing the CIA with logistical support for the flight that landed on Diego Garcia for refueling.
In the Nassar case, responding to a June 2009 request from a Spanish judge for information on Nassar's whereabouts, the U.S. Federal Bureau of Investigation (FBI) said it was not holding him in the United States but did not address whether he was being held in U.S. custody elsewhere. Asserting that the information is classified, the U.S. government has also refused to answer direct requests for information about Nassar's whereabouts made by his wife, Spanish citizen Helena Moreno Cruz.
"I have been bringing up four children without their father for nearly four years now. They keep asking about dad and I have no idea what to tell them anymore – I don't even know if their father is still alive, she said.”
"If my husband is suspected of doing anything wrong, he should get his day in court. If he isn't, he should be let go. No one deserves to be treated like this,” she added.
Nassar, a 42 year-old Spanish citizen of Syrian origin, is considered an influential Islamic theorist and intellectual. He has written a number of books and articles on Islam and jihad.
Law enforcement authorities in the U.K., Spain, and the U.S. have long suspected Nassar of having been involved in a number of terrorist acts, including the September 11 2001 attacks against the U.S., though he has never been charged with a crime.
In the early 1980s, Nassar fled Syria following his involvement in a failed attempt by the Muslim Brotherhood to overthrow the government then in power.
The letter to the U.N. says the former U.S. administration of George W. Bush pursued Nassar at least since November 2004, when it offered a $5 million reward for information relating to his capture as part of its “Rewards for Justice” program. But it says that around the time of his reported capture, the government removed Nassar’s name from the “Rewards for Justice” list, and withdrew the $5 million reward for information leading to his arrest.
Thursday, August 06, 2009
Friday, July 31, 2009
Federal Judge Rules "Enough!"
By William Fisher
One of Guantanamo’s youngest prisoners, ordered by a federal judge to be released after almost seven years in detention because his “confession” was obtained through torture, may face further hurdles before being set free.
A federal judge yesterday ordered the government to release Mohammed Jawad, who was reportedly 12-14 years old when he was captured in Afghanistan in 2001. But the Department of Justice (DOJ) said it had new eyewitness testimony of his guilt and was considering filing civilian criminal charges against him.
If they move forward with this prosecution, Jawad would probably be transferred to the U.S. for trial. If not, he would be repatriated to Afghanistan, as requested by the Afghan government, which has indicated that it is prepared to receive him immediately and unconditionally.
Declaring that “Enough has been imposed on this young man to date,” U.S. District Judge Ellen Segal Huvelle ordered the Justice Department to inform Congress of its plans for returning Jawad to Afghanistan by August 6, and to produce a report on the status of his repatriation by August 24. That order is intended to comply with new notification rules recently enacted by Congress, which is fearful of bringing Guantanamo prisoners into the continental U.S.
But criminal prosecution “is a very real possibility,” a Justice Department official told The New York Times, adding, “Whether we can compile enough evidence to support a case is a question we don’t yet know the answer to.”
Jawad’s military lawyer, Maj. David J. R. Frakt, said he would file court challenges to any effort by the administration to move his client to the United States to face charges.
And one of Jawad’s civilian lawyers, Jonathan Hafetz, a staff attorney with the American Civil Liberties Union (ACLU) told us, "Judge Huvelle made clear that Mr. Jawad has been illegally detained and the government has no credible evidence to continue holding him. We are pleased that the Justice Department has expressed a commitment to getting him home so that this injustice can finally come to an end."
He added, “We have every reason to believe that his nightmare of abuse is over and that Mr. Jawad will soon be back home with his family in Afghanistan. We have been working with the Afghan government and are confident he will not be mistreated when he is sent home.”
Judge Huvelle criticized both the Bush and Obama administrations for their “continuing pattern” of delay. She also said a criminal prosecution would be difficult because Jawad was denied his right to a speedy trial and because his treatment at Guantánamo was more severe than juvenile defendants would face in the U.S.
Huvelle said that while she had no authority to prevent a criminal indictment, she suggested that prosecutors approach this move with caution because of the many problems with the case, including Jawad's mental competency to stand trial and the fact that he has already been incarcerated for 6-plus years.
"After this horrible, long, tortured history, I hope the government will succeed in getting him back home," she said. "Enough has been imposed on this young man to date."
Jawad was arrested by Afghan police in December 2002 for allegedly throwing a grenade into a vehicle, wounding two American soldiers and their Afghan interpreter.
While Jawad confessed that he had committed the crime, he told U.S. officials that he did so only because his captors had tortured him. Under President Obama’s new rules for detainees, that would make the evidence against him unusable.
The U.S. Supreme Court ruled 13 months ago that Guantanamo prisoners could bring habeas corpus actions before federal judges to challenge their confinements. Since then, almost all the 241 prisoners still confined there have filed such motions and, of the cases heard to date, 28 have been successful. But of these, 19 men are still being detained, largely because the U.S. cannot find countries willing to receive them.
While the DOJ says it has "newly available evidence" of Jawad's guilt, it says it is not seeking more time to investigate. It says the effort to make a criminal case against Jawad is proceeding separate and apart from his habeas case.
Following his arrest, Jawad was imprisoned at Bagram Airbase in Afghanistan, and then shipped to Guantanamo. During his detention there, he says he was subjected to sleep deprivation.
His military attorney cites records indicating that Jawad was one of GITMO’s “frequent flyers” – prisoners abused by being repeatedly moved from cell to cell. According to the legal advocacy group Human Rights First, Jawad was transferred "from cell to cell 112 times over a two-week period, shackling, moving and unshackling him on average every two hours and fifty minutes. The group also noted that Jawad had attempted suicide several months earlier.
The ACLU says that Jawad is one of two Guantanamo prisoners the U.S. "has charged with war crimes for acts allegedly committed as juveniles.” Jawad's former military prosecutor, Lt. Col. Darrel Vandeveld – who resigned in protest to the military commissions set up to try Guantanamo detainees -- has said that there is “no credible evidence or legal basis to justify Jawad's detention and prosecution, and that his release presents no risk."
Jawad has recently been moved to GITMO’s Camp Iguana, now home to many detainees cleared by the U.S. for release. There, officials say, he has "relative freedom of movement and opportunities for not only education, but also social interaction, physical exercise and recreational activities.”
They describe Camp Iguana as “a communal camp with wooden, hut-like living structures, which provide freedom to move about from different buildings designated for housing, prayer, library, laundry facilities, shower/bathroom, outdoor recreation, and lounge areas. Detainees also have free access to satellite television, books, newspapers, magazines, handheld games, puzzles, and art supplies."
In another habeas corpus action, a second federal judge ordered a detainee released because of the government’s lack of evidence against him. Judge Colleen Kollar-Kotelly said that Kuwaiti citizen Khalid al Mutairi should be released as soon as arrangements can be made with a country willing to accept him and the government meets the new congressional notification requirements. A spokeswoman told media that the DOJ is reviewing the ruling.
Kuwait has been seeking Mutairi's release for some years. He was arrested in Pakistan in 2001. His lawyers say he traveled to Afghanistan to build a mosque with money from his parents, and to provide funds for schools and orphans. But the U.S. military describes him as a "hard-core extremist," who had been associated with al Qaida and the al Wafa fund, which the U.S. has designated as a terrorist organization.
Habeas corpus, often referred to as "The Great Writ", has been seen as the citizen's principal protection against the power of the state since the time of the Magna Carta. In Latin, it means, "You (shall) have the body."
One of Guantanamo’s youngest prisoners, ordered by a federal judge to be released after almost seven years in detention because his “confession” was obtained through torture, may face further hurdles before being set free.
A federal judge yesterday ordered the government to release Mohammed Jawad, who was reportedly 12-14 years old when he was captured in Afghanistan in 2001. But the Department of Justice (DOJ) said it had new eyewitness testimony of his guilt and was considering filing civilian criminal charges against him.
If they move forward with this prosecution, Jawad would probably be transferred to the U.S. for trial. If not, he would be repatriated to Afghanistan, as requested by the Afghan government, which has indicated that it is prepared to receive him immediately and unconditionally.
Declaring that “Enough has been imposed on this young man to date,” U.S. District Judge Ellen Segal Huvelle ordered the Justice Department to inform Congress of its plans for returning Jawad to Afghanistan by August 6, and to produce a report on the status of his repatriation by August 24. That order is intended to comply with new notification rules recently enacted by Congress, which is fearful of bringing Guantanamo prisoners into the continental U.S.
But criminal prosecution “is a very real possibility,” a Justice Department official told The New York Times, adding, “Whether we can compile enough evidence to support a case is a question we don’t yet know the answer to.”
Jawad’s military lawyer, Maj. David J. R. Frakt, said he would file court challenges to any effort by the administration to move his client to the United States to face charges.
And one of Jawad’s civilian lawyers, Jonathan Hafetz, a staff attorney with the American Civil Liberties Union (ACLU) told us, "Judge Huvelle made clear that Mr. Jawad has been illegally detained and the government has no credible evidence to continue holding him. We are pleased that the Justice Department has expressed a commitment to getting him home so that this injustice can finally come to an end."
He added, “We have every reason to believe that his nightmare of abuse is over and that Mr. Jawad will soon be back home with his family in Afghanistan. We have been working with the Afghan government and are confident he will not be mistreated when he is sent home.”
Judge Huvelle criticized both the Bush and Obama administrations for their “continuing pattern” of delay. She also said a criminal prosecution would be difficult because Jawad was denied his right to a speedy trial and because his treatment at Guantánamo was more severe than juvenile defendants would face in the U.S.
Huvelle said that while she had no authority to prevent a criminal indictment, she suggested that prosecutors approach this move with caution because of the many problems with the case, including Jawad's mental competency to stand trial and the fact that he has already been incarcerated for 6-plus years.
"After this horrible, long, tortured history, I hope the government will succeed in getting him back home," she said. "Enough has been imposed on this young man to date."
Jawad was arrested by Afghan police in December 2002 for allegedly throwing a grenade into a vehicle, wounding two American soldiers and their Afghan interpreter.
While Jawad confessed that he had committed the crime, he told U.S. officials that he did so only because his captors had tortured him. Under President Obama’s new rules for detainees, that would make the evidence against him unusable.
The U.S. Supreme Court ruled 13 months ago that Guantanamo prisoners could bring habeas corpus actions before federal judges to challenge their confinements. Since then, almost all the 241 prisoners still confined there have filed such motions and, of the cases heard to date, 28 have been successful. But of these, 19 men are still being detained, largely because the U.S. cannot find countries willing to receive them.
While the DOJ says it has "newly available evidence" of Jawad's guilt, it says it is not seeking more time to investigate. It says the effort to make a criminal case against Jawad is proceeding separate and apart from his habeas case.
Following his arrest, Jawad was imprisoned at Bagram Airbase in Afghanistan, and then shipped to Guantanamo. During his detention there, he says he was subjected to sleep deprivation.
His military attorney cites records indicating that Jawad was one of GITMO’s “frequent flyers” – prisoners abused by being repeatedly moved from cell to cell. According to the legal advocacy group Human Rights First, Jawad was transferred "from cell to cell 112 times over a two-week period, shackling, moving and unshackling him on average every two hours and fifty minutes. The group also noted that Jawad had attempted suicide several months earlier.
The ACLU says that Jawad is one of two Guantanamo prisoners the U.S. "has charged with war crimes for acts allegedly committed as juveniles.” Jawad's former military prosecutor, Lt. Col. Darrel Vandeveld – who resigned in protest to the military commissions set up to try Guantanamo detainees -- has said that there is “no credible evidence or legal basis to justify Jawad's detention and prosecution, and that his release presents no risk."
Jawad has recently been moved to GITMO’s Camp Iguana, now home to many detainees cleared by the U.S. for release. There, officials say, he has "relative freedom of movement and opportunities for not only education, but also social interaction, physical exercise and recreational activities.”
They describe Camp Iguana as “a communal camp with wooden, hut-like living structures, which provide freedom to move about from different buildings designated for housing, prayer, library, laundry facilities, shower/bathroom, outdoor recreation, and lounge areas. Detainees also have free access to satellite television, books, newspapers, magazines, handheld games, puzzles, and art supplies."
In another habeas corpus action, a second federal judge ordered a detainee released because of the government’s lack of evidence against him. Judge Colleen Kollar-Kotelly said that Kuwaiti citizen Khalid al Mutairi should be released as soon as arrangements can be made with a country willing to accept him and the government meets the new congressional notification requirements. A spokeswoman told media that the DOJ is reviewing the ruling.
Kuwait has been seeking Mutairi's release for some years. He was arrested in Pakistan in 2001. His lawyers say he traveled to Afghanistan to build a mosque with money from his parents, and to provide funds for schools and orphans. But the U.S. military describes him as a "hard-core extremist," who had been associated with al Qaida and the al Wafa fund, which the U.S. has designated as a terrorist organization.
Habeas corpus, often referred to as "The Great Writ", has been seen as the citizen's principal protection against the power of the state since the time of the Magna Carta. In Latin, it means, "You (shall) have the body."
Saturday, July 25, 2009
JAWAD CASE “AN OUTRAGE,” JUDGE CHARGES
By William Fisher
A federal judge last week excoriated government lawyers for advocating the continued detention of a detainee at Guantanamo Bay after his “confession” was ruled inadmissible because it was extracted through torture.
Calling the case “an outrage,” U.S. District Judge Ellen Segal Huvelle urged the lawyers to “let him out. Send him back to Afghanistan.”
She also questioned the Justice Department’s (DOJ) ability to produce any evidence to justify a trial to determine whether the detainee, Mohammed Jawad, could be held as an enemy combatant.
Jawad was arrested in Afghanistan in 2002 for allegedly throwing a grenade at two U.S. soldiers and their interpreter. He was first imprisoned at Bagram Air Force base, and then illegally rendered to Guantanamo (GITMO).
According to his lawyers, he was subjected to repeated torture and other mistreatment and to a systematic program of harsh and highly coercive interrogations designed to break him physically and mentally. Eventually, he tried to commit suicide in his cell by slamming his head repeatedly against the wall.
The Afghan government recently asked the U.S. government to return Jawed and suggested he was as young as 12 when he was captured.
The judge was particularly harsh in her criticism of the U.S. government’s case.
Among her comments: “Seven years and this case is riddled with holes…This guy has been there seven years, seven years. He might have been taken there at the age of maybe 12, 13, 14, 15 years old. I don't know what he is doing there…Your case has been gutted…The case is in shambles…This case is riddled with holes...The United States Government knows it is lousy…This is a case that's been screaming to everybody for years…This is a case unlike all the rest of them. This does not involve intelligence. This does not involve any particular high-level government agency doing the intelligence at all. Did anybody see him do it or didn't they see him do it?”
She concluded: “The time has come to face the music...for seven years the guy sat down there, being subjected to the conditions that the United States Government has subjected him to since the day they picked him up in Afghanistan…It is not fair to keep dragging this out for no good reason...We're not going to wait and wait until you come up with another piece of evidence…This case is an outrage to me…There is only one question here, did the guy throw a grenade or didn't he throw a grenade. That's the issue. Right? If he didn't do that, you can't win. If you can't prove that, you can't win.”
The judge denied the government’s request for a delay in Jawad’s habeas corpus hearing, but gave the lawyers until later in August to produce new evidence.
DOJ lawyers have indicated they may decide to bring Jawad to the U.S. for a criminal trial. They asked Judge Huvelle not to release Jawad until criminal investigators can review the allegations against him. Attorney General Eric Holder has ordered that investigation to be put on an “expedited” basis.
Jonathan Hafetz of the American Civil Liberties Union, one of Jawad’s lawyers, said he did not believe the government could come up with new evidence to support Jawad’s trial in a federal court.
He told us, “It is troubling that after admitting it tortured Jawad and illegally imprisoned him for nearly seven years, the government is not sending him home to Afghanistan right away, as law and justice demand, but is considering prolonging is unlawful imprisonment. We expect that, upon review, the Justice Department will conclude, as it must, that there is no credible or reliable evidence against Jawad, and end this travesty.”
We also discussed the case via email with Jawad’s military defense counsel, Major David Frakt. He said it was “disappointing that the Justice Department has not yet been able to conclude the review that President Obama ordered his first week in office.” However, he added, “As the government has now conceded, there is no legal basis to detain Mr. Jawad under the law of war, so he must be repatriated immediately to Afghanistan. The Afghan government has requested Mr. Jawad to be returned, and he is eager to be reunited with his family. Eighty months in illegal detention is enough.”
On July 1, the ACLU filed a motion to suppress Jawad’s statements, and the Justice Department said it would not oppose that motion. The judge in Jawad’s military commission trial had previously suppressed statements made by Jawad to Afghan and U.S. officials following his arrest, finding that they were the product of torture.
According to Jawad’s lawyers, following his arrest, he was subjected to repeated torture and other mistreatment and to a systematic program of harsh and highly coercive interrogations designed to break him physically and mentally. At Guantanamo, Jawad tried to commit suicide in his cell by slamming his head repeatedly against the wall.
The lead military prosecutor in Jawad’s Military Commission case, Lt. Col. Darrel Vandeveld, resigned in 2008, charging that “There is no credible evidence or legal basis to justify Mr. Jawad’s detention in U.S. custody or his prosecution by military commission. There is, however, reliable evidence that he was badly mistreated by U.S. authorities both in Afghanistan and at Guantanamo, and he has suffered, and continues to suffer, great psychological harm. Holding Mr. Jawad for over six years, with no resolution of his case and with no terminus in sight, is something beyond a travesty.”
Vandeveld said the U.S. government was not providing defense lawyers with the evidence it had against their clients, including material that might be helpful to the defense.
He said the absence of such evidence would likely lead to their being wrongly convicted. Testifying that he went from being a "true believer to someone who felt truly deceived" by the tribunals, he said the system in place at the U.S. military facility in Cuba was dysfunctional and deprived the accused of “basic due process.”
Three other military commission prosecutors have resigned under protest, raising questions about the fairness of the system.
During his first week in office, President Barack Obama signed an executive order to close the Guantanamo detention center within a year. He also set up task forces to review the case of each detainee still being held there and to make recommendations regarding their future disposition.
There are currently 241 prisoners at the Cuban base. More than 800 have been detained at the base since 2001. More than 500 have been released. While a few have been released recently, the Obama administration – like its predecessor – has had difficulty finding countries willing to accept prisoners classified by U.S. officials as safe to release.
That process has been made more difficult by the unwillingness of Congress to accept any detainees for resettlement in the U.S. Lawmakers have even opposed bringing GITMO prisoners to the U.S. for trials in federal courts.
Currently the administration’s task forces are working on plans to modify the military commissions to afford defendants more due process, and also considering what to with detainees it says cannot be tried but who are too dangerous to release. Human rights advocates have objected to both solutions.
A federal judge last week excoriated government lawyers for advocating the continued detention of a detainee at Guantanamo Bay after his “confession” was ruled inadmissible because it was extracted through torture.
Calling the case “an outrage,” U.S. District Judge Ellen Segal Huvelle urged the lawyers to “let him out. Send him back to Afghanistan.”
She also questioned the Justice Department’s (DOJ) ability to produce any evidence to justify a trial to determine whether the detainee, Mohammed Jawad, could be held as an enemy combatant.
Jawad was arrested in Afghanistan in 2002 for allegedly throwing a grenade at two U.S. soldiers and their interpreter. He was first imprisoned at Bagram Air Force base, and then illegally rendered to Guantanamo (GITMO).
According to his lawyers, he was subjected to repeated torture and other mistreatment and to a systematic program of harsh and highly coercive interrogations designed to break him physically and mentally. Eventually, he tried to commit suicide in his cell by slamming his head repeatedly against the wall.
The Afghan government recently asked the U.S. government to return Jawed and suggested he was as young as 12 when he was captured.
The judge was particularly harsh in her criticism of the U.S. government’s case.
Among her comments: “Seven years and this case is riddled with holes…This guy has been there seven years, seven years. He might have been taken there at the age of maybe 12, 13, 14, 15 years old. I don't know what he is doing there…Your case has been gutted…The case is in shambles…This case is riddled with holes...The United States Government knows it is lousy…This is a case that's been screaming to everybody for years…This is a case unlike all the rest of them. This does not involve intelligence. This does not involve any particular high-level government agency doing the intelligence at all. Did anybody see him do it or didn't they see him do it?”
She concluded: “The time has come to face the music...for seven years the guy sat down there, being subjected to the conditions that the United States Government has subjected him to since the day they picked him up in Afghanistan…It is not fair to keep dragging this out for no good reason...We're not going to wait and wait until you come up with another piece of evidence…This case is an outrage to me…There is only one question here, did the guy throw a grenade or didn't he throw a grenade. That's the issue. Right? If he didn't do that, you can't win. If you can't prove that, you can't win.”
The judge denied the government’s request for a delay in Jawad’s habeas corpus hearing, but gave the lawyers until later in August to produce new evidence.
DOJ lawyers have indicated they may decide to bring Jawad to the U.S. for a criminal trial. They asked Judge Huvelle not to release Jawad until criminal investigators can review the allegations against him. Attorney General Eric Holder has ordered that investigation to be put on an “expedited” basis.
Jonathan Hafetz of the American Civil Liberties Union, one of Jawad’s lawyers, said he did not believe the government could come up with new evidence to support Jawad’s trial in a federal court.
He told us, “It is troubling that after admitting it tortured Jawad and illegally imprisoned him for nearly seven years, the government is not sending him home to Afghanistan right away, as law and justice demand, but is considering prolonging is unlawful imprisonment. We expect that, upon review, the Justice Department will conclude, as it must, that there is no credible or reliable evidence against Jawad, and end this travesty.”
We also discussed the case via email with Jawad’s military defense counsel, Major David Frakt. He said it was “disappointing that the Justice Department has not yet been able to conclude the review that President Obama ordered his first week in office.” However, he added, “As the government has now conceded, there is no legal basis to detain Mr. Jawad under the law of war, so he must be repatriated immediately to Afghanistan. The Afghan government has requested Mr. Jawad to be returned, and he is eager to be reunited with his family. Eighty months in illegal detention is enough.”
On July 1, the ACLU filed a motion to suppress Jawad’s statements, and the Justice Department said it would not oppose that motion. The judge in Jawad’s military commission trial had previously suppressed statements made by Jawad to Afghan and U.S. officials following his arrest, finding that they were the product of torture.
According to Jawad’s lawyers, following his arrest, he was subjected to repeated torture and other mistreatment and to a systematic program of harsh and highly coercive interrogations designed to break him physically and mentally. At Guantanamo, Jawad tried to commit suicide in his cell by slamming his head repeatedly against the wall.
The lead military prosecutor in Jawad’s Military Commission case, Lt. Col. Darrel Vandeveld, resigned in 2008, charging that “There is no credible evidence or legal basis to justify Mr. Jawad’s detention in U.S. custody or his prosecution by military commission. There is, however, reliable evidence that he was badly mistreated by U.S. authorities both in Afghanistan and at Guantanamo, and he has suffered, and continues to suffer, great psychological harm. Holding Mr. Jawad for over six years, with no resolution of his case and with no terminus in sight, is something beyond a travesty.”
Vandeveld said the U.S. government was not providing defense lawyers with the evidence it had against their clients, including material that might be helpful to the defense.
He said the absence of such evidence would likely lead to their being wrongly convicted. Testifying that he went from being a "true believer to someone who felt truly deceived" by the tribunals, he said the system in place at the U.S. military facility in Cuba was dysfunctional and deprived the accused of “basic due process.”
Three other military commission prosecutors have resigned under protest, raising questions about the fairness of the system.
During his first week in office, President Barack Obama signed an executive order to close the Guantanamo detention center within a year. He also set up task forces to review the case of each detainee still being held there and to make recommendations regarding their future disposition.
There are currently 241 prisoners at the Cuban base. More than 800 have been detained at the base since 2001. More than 500 have been released. While a few have been released recently, the Obama administration – like its predecessor – has had difficulty finding countries willing to accept prisoners classified by U.S. officials as safe to release.
That process has been made more difficult by the unwillingness of Congress to accept any detainees for resettlement in the U.S. Lawmakers have even opposed bringing GITMO prisoners to the U.S. for trials in federal courts.
Currently the administration’s task forces are working on plans to modify the military commissions to afford defendants more due process, and also considering what to with detainees it says cannot be tried but who are too dangerous to release. Human rights advocates have objected to both solutions.
Thursday, July 16, 2009
Afghan Massacre: More Bad Apples?
By William Fisher
A prominent human rights group is calling on the U.S. Department of Justice to investigate why the administration of former President George W. Bush blocked three different probes into war crimes in Afghanistan where as many as 2,000 surrendered Taliban fighters were reportedly suffocated in container trucks and then buried in a mass grave by Afghan forces operating jointly with American forces.
Physicians for Human Rights (PHR), the Boston-based group that discovered the mass gravesite in 2002, has issued the call for the criminal probe. The organization says U.S. government documents it has obtained show that the bodies were reportedly buried in mass graves in the Dasht-e-Leili desert near Sheberghan, Afghanistan. It charges that Afghan warlord General Abdul Rashid Dostum, who it says was on the payroll of the U.S. Central Intelligence Agency (CIA), was responsible for the massacre.
“Physicians for Human Rights went to investigate inhumane conditions at a prison in northern Afghanistan, but what we found was much worse,” stated Susannah Sirkin, PHR’s Deputy Director. “Our researchers documented an apparent mass grave site with reportedly thousands of bodies of captured prisoners who were suffocated to death in trucks. That was 2002; seven years later, we still seek answers about what exactly happened and who was involved.”
PHR says senior Bush Administration officials impeded investigations by the Federal Bureau of Investigation (FBI), and the State and Defense departments, and apparently never conducted a full inquiry. The New York Times made the disclosure earlier this month in a story by Pulitzer Prize winning reporter James Risen.
Subsequently, President Barack Obama told CNN’s Anderson Cooper that he has directed his national security team to look into the alleged massacre. Obama said the government needs to find out whether actions by the U.S. contributed to possible war crimes.
“The Bush Administration’s disregard for the rule of law and the Geneva Conventions led to torture of prisoners in Guantánamo and many other secret places,” noted Nathaniel Raymond, PHR’s lead researcher on Dasht-e-Leili.
“Contrary to the legal opinions of the previous Department of Justice, the principles of the Geneva Conventions are non-negotiable, as is their enforcement. President Obama must open a full and transparent criminal probe and prosecute any U.S. officials found to have broken the law,” he said.
“The State Department’s statement to the New York Times that suspected war crimes should be thoroughly investigated indicates a move towards full accountability,” added Raymond. “We stand ready to aid the US government in investigating this massacre. It is time for the cover-up to end.”
PHR reiterated its call on the Government of Afghanistan, which has jurisdiction over the alleged mass grave site, to secure the area with the assistance of ISAF (International Security Assistance Force-Afghanistan), protect witnesses to the initial incident and the ensuing tampering and ensure a full investigation of remaining evidence at the site, including the tracing of the substantial amount of soil that appears to have been removed in 2006.
“Gravesites have been tampered with, evidence has been destroyed, and witnesses have been tortured and killed,” PHR said. “The Dasht-e-Leili mass grave site must finally be secured, all surviving witnesses must be protected, and the Government of Afghanistan, in coordination with the UN and NATO (North Atlantic Treaty Organization), must at last allow a full investigation to go forward.”
PHR charged that American officials have been reluctant to pursue an investigation — sought by officials from the FBI, the State Department, the Red Cross and human rights groups — because the warlord, Gen. Abdul Rashid Dostum, was on the payroll of the CIA and his militia worked closely with United States Special Forces in 2001.
The group said the United States also worried about undermining the American-supported government of President Hamid Karzai, in which General Dostum had served as a defense official.
“At the White House, nobody said no to an investigation, but nobody ever said yes, either,” said Pierre Prosper, the former American ambassador for war crimes issues. “The first reaction of everybody there was, ‘Oh, this is a sensitive issue; this is a touchy issue politically’.”
PHR’s Raymond, who is head of the organization’s Campaign Against Torture, told us that President Obama’s statement was welcomed. But, he added, “The President’s rhetoric must be matched by urgent action. He needs to pressure President Karzai to secure the mass graves site, protect witnesses and make sure that U.S.-led military forces and the United Nations in Afghanistan protect all evidence of the crimes.”
PHR said that, in recent weeks, State Department officials have quietly tried to thwart General Dostum’s reappointment as military chief of staff to the Afghan president, according to several senior officials, and suggested that the administration might not be hostile to an inquiry.
The question of culpability for the prisoner deaths — which may have been the most significant mass killing in Afghanistan after the 2001 American-led invasion — has taken on new urgency since the general, an important Karzai ally, was reinstated to his government post last month. He had been suspended last year and living in exile in Turkey after he was accused of threatening a political rival at gunpoint.
The killings reportedly occurred in late November 2001, just days after the American-led invasion forced the ouster of the Taliban government in Kabul. Thousands of Taliban fighters surrendered to General Dostum’s forces, which were part of the American-backed Northern Alliance, in the city of Kunduz. They were then transported to a prison run by the general’s forces near the town of Shibarghan.
Survivors and witnesses told The New York Times and Newsweek in 2002 that over a three-day period, Taliban prisoners were stuffed into closed metal shipping containers and given no food or water; many suffocated while being trucked to the prison. Other prisoners were killed when guards shot into the containers.
General Dostum, however, has said previously that any such deaths of the Taliban prisoners were unintentional. He has said that only 200 prisoners died and blamed combat wounds and disease for most of the fatalities.
The first calls for an investigation came from his group and the International Committee of the Red Cross. A military commander in the United States-led coalition rejected a request by a Red Cross official for an inquiry in late 2001, according to the official, who, in keeping with his organization’s policy, would speak only on condition of anonymity and declined to identify the commander.
Subsequently, PHR asked the Defense Department to investigate the alleged massacre, but no action was taken. PHR says the prisoner deaths came up in a conversation with Paul D. Wolfowitz, the deputy secretary of defense at the time, in early 2003.
“Somebody mentioned Dostum and the story about the containers and the possibility that this was a war crime. And Wolfowitz said we are not going to be going after him for that.
A prominent human rights group is calling on the U.S. Department of Justice to investigate why the administration of former President George W. Bush blocked three different probes into war crimes in Afghanistan where as many as 2,000 surrendered Taliban fighters were reportedly suffocated in container trucks and then buried in a mass grave by Afghan forces operating jointly with American forces.
Physicians for Human Rights (PHR), the Boston-based group that discovered the mass gravesite in 2002, has issued the call for the criminal probe. The organization says U.S. government documents it has obtained show that the bodies were reportedly buried in mass graves in the Dasht-e-Leili desert near Sheberghan, Afghanistan. It charges that Afghan warlord General Abdul Rashid Dostum, who it says was on the payroll of the U.S. Central Intelligence Agency (CIA), was responsible for the massacre.
“Physicians for Human Rights went to investigate inhumane conditions at a prison in northern Afghanistan, but what we found was much worse,” stated Susannah Sirkin, PHR’s Deputy Director. “Our researchers documented an apparent mass grave site with reportedly thousands of bodies of captured prisoners who were suffocated to death in trucks. That was 2002; seven years later, we still seek answers about what exactly happened and who was involved.”
PHR says senior Bush Administration officials impeded investigations by the Federal Bureau of Investigation (FBI), and the State and Defense departments, and apparently never conducted a full inquiry. The New York Times made the disclosure earlier this month in a story by Pulitzer Prize winning reporter James Risen.
Subsequently, President Barack Obama told CNN’s Anderson Cooper that he has directed his national security team to look into the alleged massacre. Obama said the government needs to find out whether actions by the U.S. contributed to possible war crimes.
“The Bush Administration’s disregard for the rule of law and the Geneva Conventions led to torture of prisoners in Guantánamo and many other secret places,” noted Nathaniel Raymond, PHR’s lead researcher on Dasht-e-Leili.
“Contrary to the legal opinions of the previous Department of Justice, the principles of the Geneva Conventions are non-negotiable, as is their enforcement. President Obama must open a full and transparent criminal probe and prosecute any U.S. officials found to have broken the law,” he said.
“The State Department’s statement to the New York Times that suspected war crimes should be thoroughly investigated indicates a move towards full accountability,” added Raymond. “We stand ready to aid the US government in investigating this massacre. It is time for the cover-up to end.”
PHR reiterated its call on the Government of Afghanistan, which has jurisdiction over the alleged mass grave site, to secure the area with the assistance of ISAF (International Security Assistance Force-Afghanistan), protect witnesses to the initial incident and the ensuing tampering and ensure a full investigation of remaining evidence at the site, including the tracing of the substantial amount of soil that appears to have been removed in 2006.
“Gravesites have been tampered with, evidence has been destroyed, and witnesses have been tortured and killed,” PHR said. “The Dasht-e-Leili mass grave site must finally be secured, all surviving witnesses must be protected, and the Government of Afghanistan, in coordination with the UN and NATO (North Atlantic Treaty Organization), must at last allow a full investigation to go forward.”
PHR charged that American officials have been reluctant to pursue an investigation — sought by officials from the FBI, the State Department, the Red Cross and human rights groups — because the warlord, Gen. Abdul Rashid Dostum, was on the payroll of the CIA and his militia worked closely with United States Special Forces in 2001.
The group said the United States also worried about undermining the American-supported government of President Hamid Karzai, in which General Dostum had served as a defense official.
“At the White House, nobody said no to an investigation, but nobody ever said yes, either,” said Pierre Prosper, the former American ambassador for war crimes issues. “The first reaction of everybody there was, ‘Oh, this is a sensitive issue; this is a touchy issue politically’.”
PHR’s Raymond, who is head of the organization’s Campaign Against Torture, told us that President Obama’s statement was welcomed. But, he added, “The President’s rhetoric must be matched by urgent action. He needs to pressure President Karzai to secure the mass graves site, protect witnesses and make sure that U.S.-led military forces and the United Nations in Afghanistan protect all evidence of the crimes.”
PHR said that, in recent weeks, State Department officials have quietly tried to thwart General Dostum’s reappointment as military chief of staff to the Afghan president, according to several senior officials, and suggested that the administration might not be hostile to an inquiry.
The question of culpability for the prisoner deaths — which may have been the most significant mass killing in Afghanistan after the 2001 American-led invasion — has taken on new urgency since the general, an important Karzai ally, was reinstated to his government post last month. He had been suspended last year and living in exile in Turkey after he was accused of threatening a political rival at gunpoint.
The killings reportedly occurred in late November 2001, just days after the American-led invasion forced the ouster of the Taliban government in Kabul. Thousands of Taliban fighters surrendered to General Dostum’s forces, which were part of the American-backed Northern Alliance, in the city of Kunduz. They were then transported to a prison run by the general’s forces near the town of Shibarghan.
Survivors and witnesses told The New York Times and Newsweek in 2002 that over a three-day period, Taliban prisoners were stuffed into closed metal shipping containers and given no food or water; many suffocated while being trucked to the prison. Other prisoners were killed when guards shot into the containers.
General Dostum, however, has said previously that any such deaths of the Taliban prisoners were unintentional. He has said that only 200 prisoners died and blamed combat wounds and disease for most of the fatalities.
The first calls for an investigation came from his group and the International Committee of the Red Cross. A military commander in the United States-led coalition rejected a request by a Red Cross official for an inquiry in late 2001, according to the official, who, in keeping with his organization’s policy, would speak only on condition of anonymity and declined to identify the commander.
Subsequently, PHR asked the Defense Department to investigate the alleged massacre, but no action was taken. PHR says the prisoner deaths came up in a conversation with Paul D. Wolfowitz, the deputy secretary of defense at the time, in early 2003.
“Somebody mentioned Dostum and the story about the containers and the possibility that this was a war crime. And Wolfowitz said we are not going to be going after him for that.
Wednesday, July 15, 2009
JUDGE MONA LISA SET TO ENJOY LAST SMILE
By William Fisher
Today, the first full day of questions from members of the U.S. Senate Judiciary Committee considering the confirmation of Supreme Court Justice Sonia Sotomayor, was remarkable mainly for the softball questions asked by her Democratic supporters and the snarky, “gotcha” questions posed by her Republican opponents.
With a few notable exceptions, many observers found today’s hearing an exhibition of the triumph of politics over jurisprudence. Much of the session appeared to be more akin to a political debate among rivals in a political campaign than a discussion of the profound national implications of the appointment of a jurist to a lifetime appointment.
Chairman Patrick Leahy, a Vermont Democrat, the first questioner, sought to preempt Republican criticism of an oft-quoted 2001 off-the-court speech by Sotomayor, in which she said, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."
She said, "I want to state upfront, unequivocally and without doubt: I do not believe that any racial, ethnic or gender group has an advantage in sound judging. I do believe that every person has an equal opportunity to be a good and wise judge, regardless of their background or life experiences.”
She explained that the speech was given to Hispanic and other young law students and that she was trying to inspire them to believe “they could be anything that they wanted to be.”
But the “wise Latina” issue was far from settled. It was raised again immediately afterward by the senior Republican on the Committee, Senator Jeff Sessions of Alabama. Sotomayor told him her background as a trial and appellate court judge had taught her to keep an open mind and not come to any cases with a prejudgment of the outcome.
But Sessions was apparently not satisfied; he returned to the “wise Latina” issue several times, as did Republican Senators Orrin Hatch of Utah, John Kyl, of Arizona, and Lindsey Graham of South Carolina. Sessions said he was “troubled” by the sentiment he finds in the remarks.
Overall, there was far more discussion of the “wise Latina” issue than of Sotomayor’s legal decisions or her approach to judging.
"We remain focused on some fundamental questions about the philosophy of Judge Sotomayor as expressed in her statement on more than one occasion over a period of 15 years," Sessions said yesterday after the hearings ended for the day.
"And they've expressed a rather serious critique of the classical ideal of blind justice," he said.
Trying to portray Sotomayor as an “activist judge,” the Alabama lawmaker cited her onetime comment suggesting that judges make policy.
"I do believe judges must apply the law and not make the law," the nominee said today.
"I don't think it's that clear," said Sessions.
But Sotomayor retained her composure, sitting with her leg elevated due a recent broken ankle, and with a half-smile reminiscent of the Mona Lisa. She smiled at Sessions and responded: "Life experiences influence us, in a good way. But that's not what drives the result. The impartiality in the law drives the result," she said.
She also said that she accepted as "settled" the current U.S. law permitting abortion, and indicated that she might be open to the idea of permitting Supreme Court hearings to be broadcast on television.
Sen. Charles Grassley, Republican from Iowa, asked Sotomayor about the Kelo case. Sotomayor said she "has to accept, because it is precedent" the court's ruling. The extent of the ruling, she says, "has to await the next case." In that case, the Supreme Court ruled that the city of New London, Connecticut, had the right to seize private property and turn it over to a commercial developer in order to encourage economic development.
Despite their criticisms, Republicans were careful to speak glowingly about Sotomayor’s humble beginning, her rise from a public housing project in the south Bronx to a distinguished career in the law.
"I would hope every American is proud that a Hispanic woman has been nominated to sit on the Supreme Court," said Sen. Jon Kyl, an Arizona Republican.
On this issue, the Republicans find themselves between a rock and a hard place: They need to be critical of the nominee, but they need to do it in a way that will avoid alienating Hispanic voters, who make up the nation’s fastest-growing minority demographic.
She was also questioned about a recent controversial ruling she and two other judges made against white New Haven, Connecticut firefighters who alleged reverse discrimination after being denied promotions.
Sotomayor explained that the ruling wasn't about affirmative action or quotas. "The issue was not what we would do or not do, because we were following precedent," she said, referring to her panel on the 2nd Circuit, whose ruling was overturned late last month by the Supreme Court. Sotomayor said she would "absolutely" have reached a different result in light of the Supreme Court's reversal.
The 55-year-old nominee was also grilled by Sessions on the issue of guns today. Rejecting a challenge to a New York state law banning possession of "chuka sticks," a martial arts weapon, Sotomayor said she was bound by a 19th century Supreme Court ruling that said the Second Amendment does not apply to state laws that limit weapons possession.
She noted that the justices, in ruling last year that individuals have a constitutional right to possess guns for self-defense, left open the question of whether the ruling would apply to state and local gun control laws. She said it is up to the high court, not other judges, to make that decision.
In response to questions from Democratic Senator Russ Feingold, Sotomayor declined to detail how she felt about the actions of the federal government after the terrorist attacks of September 11, 2001, the secrecy of the FISA (Foreign Intelligence Surveillance Act) court, warrantless wiretapping, the torture statute, and the limits of presidential authority because the issues are likely to come before the Supreme Court.
However, she volunteered that the power of the presidency is at its strongest when the executive branch of government acts in concert with congress.
Arguably, the only time Sotomayor appeared to be trying to find ways to evade non-judicial questions was when Senator Graham asked about her 12-year service on the board of the Puerto Rican Legal Defense and Education Fund, some 30 years ago. She ducked questions about taxpayer-funded abortions and the death penalty, saying as a board member her principal job was fund-raising. Graham promised to revisit the issue with her tomorrow.
Sotomayor is of Puerto Rican descent and was born in the Bronx, New York, where she and her family lived in a public housing project. If confirmed by the full Senate, she would be the Supreme Court’s first Latina Justice.
The hearing continues tomorrow.
Today, the first full day of questions from members of the U.S. Senate Judiciary Committee considering the confirmation of Supreme Court Justice Sonia Sotomayor, was remarkable mainly for the softball questions asked by her Democratic supporters and the snarky, “gotcha” questions posed by her Republican opponents.
With a few notable exceptions, many observers found today’s hearing an exhibition of the triumph of politics over jurisprudence. Much of the session appeared to be more akin to a political debate among rivals in a political campaign than a discussion of the profound national implications of the appointment of a jurist to a lifetime appointment.
Chairman Patrick Leahy, a Vermont Democrat, the first questioner, sought to preempt Republican criticism of an oft-quoted 2001 off-the-court speech by Sotomayor, in which she said, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."
She said, "I want to state upfront, unequivocally and without doubt: I do not believe that any racial, ethnic or gender group has an advantage in sound judging. I do believe that every person has an equal opportunity to be a good and wise judge, regardless of their background or life experiences.”
She explained that the speech was given to Hispanic and other young law students and that she was trying to inspire them to believe “they could be anything that they wanted to be.”
But the “wise Latina” issue was far from settled. It was raised again immediately afterward by the senior Republican on the Committee, Senator Jeff Sessions of Alabama. Sotomayor told him her background as a trial and appellate court judge had taught her to keep an open mind and not come to any cases with a prejudgment of the outcome.
But Sessions was apparently not satisfied; he returned to the “wise Latina” issue several times, as did Republican Senators Orrin Hatch of Utah, John Kyl, of Arizona, and Lindsey Graham of South Carolina. Sessions said he was “troubled” by the sentiment he finds in the remarks.
Overall, there was far more discussion of the “wise Latina” issue than of Sotomayor’s legal decisions or her approach to judging.
"We remain focused on some fundamental questions about the philosophy of Judge Sotomayor as expressed in her statement on more than one occasion over a period of 15 years," Sessions said yesterday after the hearings ended for the day.
"And they've expressed a rather serious critique of the classical ideal of blind justice," he said.
Trying to portray Sotomayor as an “activist judge,” the Alabama lawmaker cited her onetime comment suggesting that judges make policy.
"I do believe judges must apply the law and not make the law," the nominee said today.
"I don't think it's that clear," said Sessions.
But Sotomayor retained her composure, sitting with her leg elevated due a recent broken ankle, and with a half-smile reminiscent of the Mona Lisa. She smiled at Sessions and responded: "Life experiences influence us, in a good way. But that's not what drives the result. The impartiality in the law drives the result," she said.
She also said that she accepted as "settled" the current U.S. law permitting abortion, and indicated that she might be open to the idea of permitting Supreme Court hearings to be broadcast on television.
Sen. Charles Grassley, Republican from Iowa, asked Sotomayor about the Kelo case. Sotomayor said she "has to accept, because it is precedent" the court's ruling. The extent of the ruling, she says, "has to await the next case." In that case, the Supreme Court ruled that the city of New London, Connecticut, had the right to seize private property and turn it over to a commercial developer in order to encourage economic development.
Despite their criticisms, Republicans were careful to speak glowingly about Sotomayor’s humble beginning, her rise from a public housing project in the south Bronx to a distinguished career in the law.
"I would hope every American is proud that a Hispanic woman has been nominated to sit on the Supreme Court," said Sen. Jon Kyl, an Arizona Republican.
On this issue, the Republicans find themselves between a rock and a hard place: They need to be critical of the nominee, but they need to do it in a way that will avoid alienating Hispanic voters, who make up the nation’s fastest-growing minority demographic.
She was also questioned about a recent controversial ruling she and two other judges made against white New Haven, Connecticut firefighters who alleged reverse discrimination after being denied promotions.
Sotomayor explained that the ruling wasn't about affirmative action or quotas. "The issue was not what we would do or not do, because we were following precedent," she said, referring to her panel on the 2nd Circuit, whose ruling was overturned late last month by the Supreme Court. Sotomayor said she would "absolutely" have reached a different result in light of the Supreme Court's reversal.
The 55-year-old nominee was also grilled by Sessions on the issue of guns today. Rejecting a challenge to a New York state law banning possession of "chuka sticks," a martial arts weapon, Sotomayor said she was bound by a 19th century Supreme Court ruling that said the Second Amendment does not apply to state laws that limit weapons possession.
She noted that the justices, in ruling last year that individuals have a constitutional right to possess guns for self-defense, left open the question of whether the ruling would apply to state and local gun control laws. She said it is up to the high court, not other judges, to make that decision.
In response to questions from Democratic Senator Russ Feingold, Sotomayor declined to detail how she felt about the actions of the federal government after the terrorist attacks of September 11, 2001, the secrecy of the FISA (Foreign Intelligence Surveillance Act) court, warrantless wiretapping, the torture statute, and the limits of presidential authority because the issues are likely to come before the Supreme Court.
However, she volunteered that the power of the presidency is at its strongest when the executive branch of government acts in concert with congress.
Arguably, the only time Sotomayor appeared to be trying to find ways to evade non-judicial questions was when Senator Graham asked about her 12-year service on the board of the Puerto Rican Legal Defense and Education Fund, some 30 years ago. She ducked questions about taxpayer-funded abortions and the death penalty, saying as a board member her principal job was fund-raising. Graham promised to revisit the issue with her tomorrow.
Sotomayor is of Puerto Rican descent and was born in the Bronx, New York, where she and her family lived in a public housing project. If confirmed by the full Senate, she would be the Supreme Court’s first Latina Justice.
The hearing continues tomorrow.
Monday, July 13, 2009
Republicans Tread Cautiously in Sotomayor Hearing
By William Fisher
In what many Congress-watchers see as Washington’s version of Kabuki Theater, the U.S. Senate Judiciary Committee today began its hearings on the confirmation of Judge Sonia Sotomayor to be the first Latina associate justice of the Supreme Court and only the third woman ever to be nominated to the nation’s highest court.
In a packed hearing room, the committee, 13 Democrats and 7 Republicans, will spend much of this week asking the 55-year-old nominee about her compelling up-from-poverty personal story, her judicial philosophy, the decisions she made in her 17-year record as a federal judge, and a number of her speeches and papers which have become controversial.
President Barack Obama chose Sotomayor in late May to take the place of Justice David Souter, who retired last month. Justice Souter was appointed by President George H.W. Bush, but has generally sided with the liberal wing of the court. Sotomayor’s presence would probably not appreciably alter the balance of the power on the conservative-leaning court.
While her confirmation is considered virtually certain – Democrats control both the committee and the full Senate – the thrust of the questions from representatives of the two political parties varied widely.
Democrats focused on Judge Sotomayor’s personal background, education, and experience as a 17-year a federal judge, and portrayed the nominee as a painstakingly careful “mainstream” jurist with a demonstrated record of applying the law fairly.
A majority of Republicans – some of whom have labeled President Barack Obama’s pick a racist – appeared to dismiss the bulk of her rulings as dictated by Supreme Court precedent, and instead cited a handful of controversial decisions and off-the-bench remarks to paint Judge Sotomayor as an extremist who could use her high court seat to tip the scales in favor of minority groups she considers victimized by American history. Controversial cases include discrimination complaints, gun rights, and her largely unknown views on abortion.
The party schism was seen in bold relief in this morning’s 10-minute opening statements from each of the committee members. But, in the surprisingly civil and respectful tone struck by Republican members, it was clear that they were well aware of the risk posed among Latino voters if their statements appeared to be overly harsh.
In his opening statement, the chairman of the committee, Senator Patrick Leahy, a Democrat from Vermont, criticized “distorted attacks” on Sotomayor on the basis of race. He said the nominee will rule on the basis of law, not ideology.
He compared Sotomayor to Thurgood Marshall, the court's first African American, and Sandra Day O'Connor, its first female member.
Conservatives and some Republicans, Leahy said, have attempted to "twist her words and her record. . . Ideological pressure groups have attacked her before the president had even made his selection," Leahy said. "They then stepped up their attacks by threatening Republican senators who do not oppose her.”
He said, "We do not have to speculate about what kind of a justice she will be because we have seen the kind of judge she has been. She is a judge in which all Americans can have confidence."
The committee's ranking Republican, Sen. Jeff Sessions of Alabama, criticized a speech Sotomayor gave in 2001, in which she said that she hoped that a "wise Latina" judge might make better decisions than a white man.
Sessions also referenced a recent case, Ricci v. DeStefano, in which the Supreme Court overturned a unanimous 2nd Circuit three judge panel of which Sotomayor was a member. The high court ruled that white firefighters had been discriminated against when the city of New Haven, Connecticut, withdrew a test for promotions because minority candidates scored more poorly than whites.
Sessions said he thought that American jurisprudence “is at a crossroads.” One path, he said, will take us down the “traditional road”, which gives our Constitution its “moral authority.” The other road, he said, takes us to “activist judges” who distort the Constitution to fit their political agendas.
Sessions disagreed with the characterization of Sotomayor as “moderate,” instead comparing her with Justice Ruth Bader Ginsburg, who he called “one of the most activist judges” on the Supreme Court.
In her brief remarks, which came at the end of three hours of statements from 20 senators, Judge Sotomayor told the Senators that her judicial philosophy is not to make law, but rather to apply the law to the facts of each case. “My decisions are not made to service the interests of any one litigant,” she said. She added that she was keenly aware of the impacts of her rulings on the lives of real people with real problems.
Sotomayor is of Puerto Rican descent, and was born in the Bronx, New York, where she and her family lived in a public housing project. She graduated with an A.B., summa cum laude, from Princeton University in 1976, and received her J.D. from Yale Law School in 1979, where she was an editor at the Yale Law Journal.
Sotomayor was an Assistant District Attorney in New York for five years before entering private practice in 1984. She played an active role on the board of directors for the Puerto Rican Legal Defense and Education Fund.
Sotomayor was nominated to the U.S. District Court by President George H. W. Bush in 1991 and confirmed in 1992. In 1997, she was nominated by President Bill Clinton to the U.S. Court of Appeals.
The American Bar Association has given Judge Sotomayor its highest rating – “well qualified.” She has also received the support of law enforcement agencies, liberal think tanks, and most good-government and civil rights organizations. Conservative lawmakers and advocacy groups such as the National Rifle Association have raised questions about her fitness to serve on the court.
But the current consensus is that the Republicans are resigned to losing this fight. As South Carolina Republican Senator Lindsey Graham told her this morning, “Unless you have a complete meltdown, you are going to be confirmed.” Republicans have also been put in a delicate political position, since their party is actively wooing Hispanic voters – the nations’ fastest-growing minority demographic.
But, as was clear by this morning’s statements, Republicans will nonetheless mount an attack on Sotomayor as a predicate for a much harsher assault when President Obama nominates his next Supreme Court choice because that nominee is likely to change the Court’s liberal-conservative balance of power.
In what many Congress-watchers see as Washington’s version of Kabuki Theater, the U.S. Senate Judiciary Committee today began its hearings on the confirmation of Judge Sonia Sotomayor to be the first Latina associate justice of the Supreme Court and only the third woman ever to be nominated to the nation’s highest court.
In a packed hearing room, the committee, 13 Democrats and 7 Republicans, will spend much of this week asking the 55-year-old nominee about her compelling up-from-poverty personal story, her judicial philosophy, the decisions she made in her 17-year record as a federal judge, and a number of her speeches and papers which have become controversial.
President Barack Obama chose Sotomayor in late May to take the place of Justice David Souter, who retired last month. Justice Souter was appointed by President George H.W. Bush, but has generally sided with the liberal wing of the court. Sotomayor’s presence would probably not appreciably alter the balance of the power on the conservative-leaning court.
While her confirmation is considered virtually certain – Democrats control both the committee and the full Senate – the thrust of the questions from representatives of the two political parties varied widely.
Democrats focused on Judge Sotomayor’s personal background, education, and experience as a 17-year a federal judge, and portrayed the nominee as a painstakingly careful “mainstream” jurist with a demonstrated record of applying the law fairly.
A majority of Republicans – some of whom have labeled President Barack Obama’s pick a racist – appeared to dismiss the bulk of her rulings as dictated by Supreme Court precedent, and instead cited a handful of controversial decisions and off-the-bench remarks to paint Judge Sotomayor as an extremist who could use her high court seat to tip the scales in favor of minority groups she considers victimized by American history. Controversial cases include discrimination complaints, gun rights, and her largely unknown views on abortion.
The party schism was seen in bold relief in this morning’s 10-minute opening statements from each of the committee members. But, in the surprisingly civil and respectful tone struck by Republican members, it was clear that they were well aware of the risk posed among Latino voters if their statements appeared to be overly harsh.
In his opening statement, the chairman of the committee, Senator Patrick Leahy, a Democrat from Vermont, criticized “distorted attacks” on Sotomayor on the basis of race. He said the nominee will rule on the basis of law, not ideology.
He compared Sotomayor to Thurgood Marshall, the court's first African American, and Sandra Day O'Connor, its first female member.
Conservatives and some Republicans, Leahy said, have attempted to "twist her words and her record. . . Ideological pressure groups have attacked her before the president had even made his selection," Leahy said. "They then stepped up their attacks by threatening Republican senators who do not oppose her.”
He said, "We do not have to speculate about what kind of a justice she will be because we have seen the kind of judge she has been. She is a judge in which all Americans can have confidence."
The committee's ranking Republican, Sen. Jeff Sessions of Alabama, criticized a speech Sotomayor gave in 2001, in which she said that she hoped that a "wise Latina" judge might make better decisions than a white man.
Sessions also referenced a recent case, Ricci v. DeStefano, in which the Supreme Court overturned a unanimous 2nd Circuit three judge panel of which Sotomayor was a member. The high court ruled that white firefighters had been discriminated against when the city of New Haven, Connecticut, withdrew a test for promotions because minority candidates scored more poorly than whites.
Sessions said he thought that American jurisprudence “is at a crossroads.” One path, he said, will take us down the “traditional road”, which gives our Constitution its “moral authority.” The other road, he said, takes us to “activist judges” who distort the Constitution to fit their political agendas.
Sessions disagreed with the characterization of Sotomayor as “moderate,” instead comparing her with Justice Ruth Bader Ginsburg, who he called “one of the most activist judges” on the Supreme Court.
In her brief remarks, which came at the end of three hours of statements from 20 senators, Judge Sotomayor told the Senators that her judicial philosophy is not to make law, but rather to apply the law to the facts of each case. “My decisions are not made to service the interests of any one litigant,” she said. She added that she was keenly aware of the impacts of her rulings on the lives of real people with real problems.
Sotomayor is of Puerto Rican descent, and was born in the Bronx, New York, where she and her family lived in a public housing project. She graduated with an A.B., summa cum laude, from Princeton University in 1976, and received her J.D. from Yale Law School in 1979, where she was an editor at the Yale Law Journal.
Sotomayor was an Assistant District Attorney in New York for five years before entering private practice in 1984. She played an active role on the board of directors for the Puerto Rican Legal Defense and Education Fund.
Sotomayor was nominated to the U.S. District Court by President George H. W. Bush in 1991 and confirmed in 1992. In 1997, she was nominated by President Bill Clinton to the U.S. Court of Appeals.
The American Bar Association has given Judge Sotomayor its highest rating – “well qualified.” She has also received the support of law enforcement agencies, liberal think tanks, and most good-government and civil rights organizations. Conservative lawmakers and advocacy groups such as the National Rifle Association have raised questions about her fitness to serve on the court.
But the current consensus is that the Republicans are resigned to losing this fight. As South Carolina Republican Senator Lindsey Graham told her this morning, “Unless you have a complete meltdown, you are going to be confirmed.” Republicans have also been put in a delicate political position, since their party is actively wooing Hispanic voters – the nations’ fastest-growing minority demographic.
But, as was clear by this morning’s statements, Republicans will nonetheless mount an attack on Sotomayor as a predicate for a much harsher assault when President Obama nominates his next Supreme Court choice because that nominee is likely to change the Court’s liberal-conservative balance of power.
Wednesday, July 08, 2009
HUMAN RIGHTS GROUPS SLAM OBAMA “PLATITUDES”
By William Fisher
Following a loss in federal court, the organization representing detainees held by the U.S. without charge at Bagram Prison in Afghanistan, called on the Obama Administration to “reverse the flawed policies of the previous Bush White House” and end the indefinite detention without trial of Afghan civilians held in American custody.
Judge John D. Bates of the U.S. District Court for the District of Columbia dismissed the petition Haji Wazir, an Afghan civilian held at Bagram without charge for more than six years. The judge ruled that because the petitioner was a citizen of Afghanistan, he had no right to petition the U.S. courts for his release.
In an earlier ruling, in April 2009, Judge Bates said that three other Bagram prisoners -- two Yemenis and one Tunisian citizen – did have the right to petition U.S. courts for their release. But he also ruled that because Wazir was a citizen of Afghanistan, rather than a Yemeni or Tunisian citizen held at Bagram, granting him legal rights might upset the relationship between the U.S. and Afghanistan.
Wazir is a citizen of Afghanistan who was captured in Pakistan in 2002, and held since then in extrajudicial detention at Bagram. He is notable because he is one of the very few captives in Bagram who has had a writ of habeas corpus filed on his behalf.
According to Lal Gul, chairman of the Afghan Human Rights Organization, Wazir "is not a commander, not a member of the Taliban or al-Qaeda. He is a businessman."
Tina Monshipour Foster, Executive Director of the International Justice Network (IJNetwork), the organization representing Bagram detainees, told us, "The Court’s decision to deny Mr. Wazir the right to challenge his detention was based solely on the fact that he is a citizen of Afghanistan. It is time for President Obama to take action and begin to reverse the flawed policies of the previous Bush White House.”
She added, “If the Obama Administration genuinely wants to restore the moral authority of the United States, commitment to ‘change’ must extend to Bagram and all the detainees held there. Only after we cease to deny Afghan citizens the most basic rights to due process can legitimate talk of justice and cooperation take place. "
"It is now more urgent than ever that the Obama administration end the Bush administration's inhumane and unlawful detention practices in Afghanistan,” she said.
"If President Obama doesn't remedy the situation created by the court decision, Afghan citizens will be denied equal access to our courts," added Foster. "Such a gross inequality does great harm to America's reputation as a nation committed to justice and equality for all people."
IJNetwork Litigation and Advocacy Director, Barbara J. Olshansky, said that "President Obama must do more than issue platitudes about closing Guantanamo, he must establish a fair and effective system of justice that applies to all individuals who we take into our custody and control, no matter where in the world we decide to locate the prison."
In response to the court’s decision, Olshansky added, "innocent civilians should not have to languish in prison solely because they are citizens of Afghanistan -- the present administration can, and must, provide fundamental rights to everyone it chooses to detain, regardless of race, ethnicity, or religion."
The International Justice Network (IJNetwork) provides legal assistance and expertise to victims of human rights abuses through a global network of legal professionals, non-governmental organizations and community-based human rights advocates.
While millions know that the administration of George W. Bush has left Barack Obama with the job of closing the U.S. prison at Guantanamo Bay, Cuba, relatively few are aware that the new president will also face a similar but far larger dilemma 7,000 miles away.
That dilemma is what to do with the what has become known as “the other GITMO” – the U.S.-controlled military prison at Bagram Air Base near Kabul in Afghanistan – and the estimated 600-700 detainees now held there.
The “other GITMO” was set up by the U.S. military as a temporary screening site after the 2001 invasion of Afghanistan overthrew the Taliban. It currently houses more than three times as many prisoners as are still held at Guantanamo.
In 2005, following well-documented accounts of detainee deaths, torture and “disappeared” prisoners, the U.S. undertook efforts to turn the facility over to the Afghan government. But due to a series of legal, bureaucratic and administrative missteps, the prison is still under American military control. And a recent confidential report from the International Committee of the Red Cross (ICRC) has reportedly complained about the continued mistreatment of prisoners.
The ICRC report is said to cite massive overcrowding, “harsh” conditions, lack of clarity about the legal basis for detention, prisoners held “incommunicado” in “a previously undisclosed warren of isolation cells” and “sometimes subjected to cruel treatment in violation of the Geneva Conventions”. Some prisoners have been held without charges or lawyers for more than five years. The Red Cross said that dozens of prisoners have been held incommunicado for weeks or even months, hidden from prison inspectors.
Jonathan Hafetz, staff attorney with the American Civil Liberties Union National Security Project, told us, "When prisoners are in American custody and under American control, no matter the location, our values and commitment to the rule of law are at stake."
"Torture and abuse at Bagram is further evidence that prisoner abuse in U.S. custody was systemic, not aberrational, and originated at the highest levels of government. We must learn the truth about what went wrong, hold the proper people accountable and make sure these failed policies are not continued or repeated," he said.
In April, the ACLU filed a Freedom of Information Act (FOIA) request for records pertaining to the detention and treatment of prisoners held at Bagram, including the number of people currently detained, their names, citizenship, place of capture and length of detention. The ACLU is also seeking records pertaining to the process afforded those prisoners to challenge their detention and designation as "enemy combatants."
"The U.S. government's detention of hundreds of prisoners at Bagram has been shrouded in complete secrecy," said Melissa Goodman, staff attorney with the ACLU National Security Project. "The American people have a right to know what's happening at Bagram and whether prisoners have been tortured there."
Thousands of individuals from all over the world have been taken to the airfield prison, and it is being expanded with a new prison to hold more than 11,000.
Following a loss in federal court, the organization representing detainees held by the U.S. without charge at Bagram Prison in Afghanistan, called on the Obama Administration to “reverse the flawed policies of the previous Bush White House” and end the indefinite detention without trial of Afghan civilians held in American custody.
Judge John D. Bates of the U.S. District Court for the District of Columbia dismissed the petition Haji Wazir, an Afghan civilian held at Bagram without charge for more than six years. The judge ruled that because the petitioner was a citizen of Afghanistan, he had no right to petition the U.S. courts for his release.
In an earlier ruling, in April 2009, Judge Bates said that three other Bagram prisoners -- two Yemenis and one Tunisian citizen – did have the right to petition U.S. courts for their release. But he also ruled that because Wazir was a citizen of Afghanistan, rather than a Yemeni or Tunisian citizen held at Bagram, granting him legal rights might upset the relationship between the U.S. and Afghanistan.
Wazir is a citizen of Afghanistan who was captured in Pakistan in 2002, and held since then in extrajudicial detention at Bagram. He is notable because he is one of the very few captives in Bagram who has had a writ of habeas corpus filed on his behalf.
According to Lal Gul, chairman of the Afghan Human Rights Organization, Wazir "is not a commander, not a member of the Taliban or al-Qaeda. He is a businessman."
Tina Monshipour Foster, Executive Director of the International Justice Network (IJNetwork), the organization representing Bagram detainees, told us, "The Court’s decision to deny Mr. Wazir the right to challenge his detention was based solely on the fact that he is a citizen of Afghanistan. It is time for President Obama to take action and begin to reverse the flawed policies of the previous Bush White House.”
She added, “If the Obama Administration genuinely wants to restore the moral authority of the United States, commitment to ‘change’ must extend to Bagram and all the detainees held there. Only after we cease to deny Afghan citizens the most basic rights to due process can legitimate talk of justice and cooperation take place. "
"It is now more urgent than ever that the Obama administration end the Bush administration's inhumane and unlawful detention practices in Afghanistan,” she said.
"If President Obama doesn't remedy the situation created by the court decision, Afghan citizens will be denied equal access to our courts," added Foster. "Such a gross inequality does great harm to America's reputation as a nation committed to justice and equality for all people."
IJNetwork Litigation and Advocacy Director, Barbara J. Olshansky, said that "President Obama must do more than issue platitudes about closing Guantanamo, he must establish a fair and effective system of justice that applies to all individuals who we take into our custody and control, no matter where in the world we decide to locate the prison."
In response to the court’s decision, Olshansky added, "innocent civilians should not have to languish in prison solely because they are citizens of Afghanistan -- the present administration can, and must, provide fundamental rights to everyone it chooses to detain, regardless of race, ethnicity, or religion."
The International Justice Network (IJNetwork) provides legal assistance and expertise to victims of human rights abuses through a global network of legal professionals, non-governmental organizations and community-based human rights advocates.
While millions know that the administration of George W. Bush has left Barack Obama with the job of closing the U.S. prison at Guantanamo Bay, Cuba, relatively few are aware that the new president will also face a similar but far larger dilemma 7,000 miles away.
That dilemma is what to do with the what has become known as “the other GITMO” – the U.S.-controlled military prison at Bagram Air Base near Kabul in Afghanistan – and the estimated 600-700 detainees now held there.
The “other GITMO” was set up by the U.S. military as a temporary screening site after the 2001 invasion of Afghanistan overthrew the Taliban. It currently houses more than three times as many prisoners as are still held at Guantanamo.
In 2005, following well-documented accounts of detainee deaths, torture and “disappeared” prisoners, the U.S. undertook efforts to turn the facility over to the Afghan government. But due to a series of legal, bureaucratic and administrative missteps, the prison is still under American military control. And a recent confidential report from the International Committee of the Red Cross (ICRC) has reportedly complained about the continued mistreatment of prisoners.
The ICRC report is said to cite massive overcrowding, “harsh” conditions, lack of clarity about the legal basis for detention, prisoners held “incommunicado” in “a previously undisclosed warren of isolation cells” and “sometimes subjected to cruel treatment in violation of the Geneva Conventions”. Some prisoners have been held without charges or lawyers for more than five years. The Red Cross said that dozens of prisoners have been held incommunicado for weeks or even months, hidden from prison inspectors.
Jonathan Hafetz, staff attorney with the American Civil Liberties Union National Security Project, told us, "When prisoners are in American custody and under American control, no matter the location, our values and commitment to the rule of law are at stake."
"Torture and abuse at Bagram is further evidence that prisoner abuse in U.S. custody was systemic, not aberrational, and originated at the highest levels of government. We must learn the truth about what went wrong, hold the proper people accountable and make sure these failed policies are not continued or repeated," he said.
In April, the ACLU filed a Freedom of Information Act (FOIA) request for records pertaining to the detention and treatment of prisoners held at Bagram, including the number of people currently detained, their names, citizenship, place of capture and length of detention. The ACLU is also seeking records pertaining to the process afforded those prisoners to challenge their detention and designation as "enemy combatants."
"The U.S. government's detention of hundreds of prisoners at Bagram has been shrouded in complete secrecy," said Melissa Goodman, staff attorney with the ACLU National Security Project. "The American people have a right to know what's happening at Bagram and whether prisoners have been tortured there."
Thousands of individuals from all over the world have been taken to the airfield prison, and it is being expanded with a new prison to hold more than 11,000.
Subscribe to:
Posts (Atom)
