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Pundits Punch and Congress Cowers: Bill Bans all Gitmo Prisoner Transfers for Trial

12:18 pm in Uncategorized by daphneeviatarhumanrights1st

After Ahmed Ghailani was found guilty of participating in a conspiracy to bomb two U.S. embassies in November, a conviction that could land him life in prison (his sentencing hearing is scheduled for January), the usual slate of right-wing pundits took to the airwaves, eager to denounce President Obama for trying the suspected terrorist at all.

Liz Cheney declared that the guilty verdict “signals weakness in a time of war.”

John Yoo said prosecutors were “lucky to even get one conviction,” adding that “It is really hard to see what the upside is to having civilian trials.”

And Laura Ingraham, sitting in for Bill O’Reilly on Fox, called trying terror suspects in federal court “insane,” “wrong” and “potentially dangerous.”

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Is the Obama Administration Guilty of a War Crime?

6:10 am in Uncategorized by daphneeviatarhumanrights1st

That’s because Khadr is charged with crimes that were only defined as war crimes by the Military Commissions Act, first enacted in 2006. Khadr is charged with conspiracy and material support for terrorism for helping his father’s friends make and plant improvised explosive devices, and for "murder in violation of the laws of war" for throwing a grenade that killed a U.S. soldier during a firefight started by U.S. forces. All of these acts allegedly occurred in the summer of 2002. Back then, making bombs, planting anti-tank mines and killing the other side’s soldiers who were trying to kill you first didn’t violate any rules of war. Because Khadr was not a "privileged" belligerent entitled to the protections of international law, he could be prosecuted in a criminal court in the United States or Afghanistan. He is not, however, a war criminal.

Congress and the defense department have tried to get around this fact. In 2006 and again in 2009, Congress unilaterally re-wrote international law by defining conspiracy and material support for terrorism — which encompasses pretty much anything an enemy force or its supporters might do — as war crimes. In commentary to the rules, the Department of Defense further defined "murder in violation of the laws of war" to include murder of a U.S. soldier by an "unprivileged belligerent" such as Khadr. But simply stating it doesn’t make it true.

Putting a suspect on trial for crimes that did not exist when the acts were committed is a violation of the U.S. Constitution’s prohibition on ex post facto laws. It also violates several international treaties, including article 75 of the Additional Geneva Protocol I of 1977, which says that "no one shall be accused or convicted of a criminal offense on account of any act or omission which did not constitute a criminal offense under the national or international law to which he was subject at the time when it was committed…" The U.S. has acknowledged that this accurately states customary international law. Putting Omar Khadr on trial in a military commission for the acts of which he’s accused, then, according to Professor Glazier, is itself a violation of the laws of war and a "grave breach" of the Third and Fourth Geneva Conventions. Such crimes can be prosecuted by other countries under the principle of universal jurisdiction. In the United States they’re also federal felonies under the War Crimes Act of 1996.

Setting aside the likelihood of any other countries prosecuting the U.S. for war crimes in this situation, it’s odd indeed that the Obama administration would choose to pursue this case — indeed, would make this its first war crimes trial — in the Guantanamo Bay military commissions.

There’s another reason the U.S. might not want to call attention to the circumstances of this case. In August, the government presented as a witness a member of U.S. Special Forces who described entering the compound where Khadr was found and ultimately seized in July 2002. The witness, identified as Sergeant Major D, was armed with an N-4 Rifle and a Glock-9mm pistol. The compound had just been shot up by U.S. Apache helicopters and bombarded by two 500-pound bombs. After sensing a grenade and small arms fire coming from an alleyway, he testified, Major D ran to the alley and shot dead a man he saw with an AK-47 and a grenade. Omar Khadr, meanwhile, was seated on the ground in a dusty light-blue tunic, his back to Major D. Khadr was not armed, he wasn’t holding or aiming any sort of weapon, nor was he threatening any U.S. servicemember in any way. Yet Sergeant Major D testified that he immediately shot him twice in the back. He then walked over and "thumped him in the eye" to see if he was still alive. He was.

Targeting a civilian not actively participating in hostilities is normally a war crime. Sergeant Major D testified that he shot Khadr because he viewed him as a "hostile" based on his being in the compound, which was permitted by the military’s rules of engagement.

The laws of war should doom the military commission prosecution of Omar Khadr. And ultimately, for the U.S. government, that’s not a bad thing. After all, if its interpretation of the laws of war were accurate, then the armed civilian CIA agent that accompanied Special Forces on their July 2002 raid could be equally guilty of murder in violation of the laws of war if he killed any of the al Qaeda members who died that day. So could CIA operatives operating remote-controlled drones targeting al Qaeda and Taliban leaders around the world.

Charlie Savage reported in the Times that the Obama administration doesn’t want to put a stop to the case, such as by pushing a plea bargain, because it would be seen as "improper interference." But if the case is itself "improper" or even illegal, then the choice is to stop it now or see a conviction reversed later by a court on appeal. The latter choice might save the administration some immediate embarrassment before the midterm elections; but it will leave Omar Khadr cooped up even longer in a military prison on fictitious crimes. And it will leave a far more embarrassing legacy for the United States to contend with in the long run.


This blog originally appeared at Human Rights First.

First U.S. Trial of ‘Child Soldier’ in Modern History Starts This Week at Gitmo

12:44 pm in Uncategorized by daphneeviatarhumanrights1st

On Tuesday, the Obama administration is scheduled to begin its first trial of a prisoner held at Guantanamo Bay. Omar Khadr was only 15 when he was captured in a firefight in 2002 with U.S. forces in Afghanistan. Now 23, he’ll finally have his day in court. Only instead of an experienced federal court with a long history of trying terror suspects, Khadr will be tried in a military commission, created just last year. In the eight years since President George W. Bush created the first military commissions at Guantanamo, they have convicted only four terrorists – only two in contested trials. Regular federal courts in the United States, by contrast, have convicted more than 400 in the same time period.

Khadr was only nine when his father, an alleged Al Qaeda financier, dragged him from Canada to Afghanistan and put him to work helping his Al Qaeda-connected friends. Khadr has said that he never had a choice. And a Canadian intelligence agency reported, based on interrogations of Khadr in 2003, that Khadr viewed Al Qaeda "through the eyes of a child" who didn’t understand that his father’s activities were linked to terrorism.

What’s more, based on what’s been presented in pretrial hearings so far, there appears to be little or no evidence, other than "confessions" extracted under highly suspicious circumstances, that Khadr actually committed the most serious crime he’s accused of: throwing a grenade that killed a U.S. soldier.

Even if he did, Khadr shouldn’t be tried in a military commission.

Under international law, a child captured in combat is supposed to be treated as a victim rather than a warrior, offered rehabilitation in custody and eventually repatriated home. Khadr, who has relatives in Canada, was offered neither option.

In addition, the crime of murdering a U.S. soldier isn’t actually a war crime. In war, it’s not a crime to target the other side’s soldiers. But because Khadr was a civilian, rather than a member of a regular foreign army, throwing a grenade is a criminal act that could be prosecuted in a regular criminal court. Although the military commission rules characterize his crime as one that falls within the commissions’ jurisdiction, the legal authority of the commission to prosecute conduct that was declared a war crime after the act was committed, or ex-post facto, remains legally questionable.

Khadr’s lawyer has also questioned the legality of the military commissions as a whole, filing an appeal just this week with the Supreme Court arguing that the commissions are unconstitutional because they target only "aliens"–people who are not U.S. citizens. Though the courts have so far punted on this issue, it’s clear that even if Khadr is convicted, he’ll have several strong grounds for appeal.

So why is the government bringing this case in a military commission?

Perhaps the government hopes that Khadr’s statements, which he claims were extracted by various kinds of torture and abuse, will be allowed into court as evidence. Although Khadr’s lawyer hasn’t yet had the opportunity to present all the evidence of his client’s treatment at Bagram and at Guantanamo Bay, what’s come out at pretrial hearings so far is that when Khadr was captured by U.S. soldiers in July 2002, the teenager had been shot twice in the back, blinded in one eye and had a face peppered with shrapnel. Interrogators at the Bagram air base took to calling him "Buckshot Bob." But that didn’t stop them from interrogating him while he was still recovering from life-threatening wounds and strapped to a hospital gurney. Using what the military calls a "fear up" technique, an interrogator testified, Khadr was told a story about another prison just like him who refused to cooperate – and who then was gang-raped and killed in an American prison.

Official documents also reveal that at Guantanamo, Khadr was subjected to the military’s "frequent flyer" program — meaning he was moved every three hours for weeks at a time to keep him from sleeping prior to interrogations.

So just how reliable are the statements he made, either at Bagram or at Guantanamo?

Now, after eight years at Gitmo, Khadr insists he’s not guilty. He has also at times said he’d boycott his own trial because he thinks the whole military commission process is a sham.

It’s easy to understand why. Now 23, Khadr, has been interviewed by dozens of interrogators, each time led to believe that his cooperation would spare him from violence and lead to his release. He told interrogators what he thought they wanted to hear, but that release never happened. If Khadr had been imprisoned in the United States, he would have been tried and either convicted or released long ago. But instead, Khadr has been held without trial on a secluded prison camp in Cuba for nearly a decade with little opportunity to defend himself.

Human Rights First has been observing the military commission hearings since their inception in 2002. Repeatedly, our observers have been astounded by the injustices, inefficiency and wholesale fiasco that many of the inexperienced and legally questionable commissions’ proceedings produce.

That’s partly because the commissions are so new – created by a law passed in 2009. The first military commission system, created by the Bush administration, was ruled unconstitutional by the U.S. Supreme Court in 2006. As a result, there’s is almost no legal precedent to guide commission judges. The Military Commissions Manual, meanwhile, was only issued in late April – on the eve of Khadr’s first pretrial hearing. The resulting confusion offers yet more opportunity for Khadr and anyone else convicted in a military commission to challenge their convictions on a broad range of legal grounds. Decisions on the prisoners’ fate will be delayed that much longer.

There’s another reason that this whole military commission system leaves me scratching my head: the extravagant expense involved. Keeping the Guantanamo Bay prison camp and military commission system open for fewer than 180 detainees costs taxpayers a lot of money. Construction and renovations to the camp have cost about $500 million so far; operating costs are another $150 million every year. The Washington Post recently estimated the bill, much of which has been paid to KBR and Halliburton, has so far exceeded $2 billion. Just the cost of flying dozens of journalists and observers like myself, plus all the lawyers involved, to and from Guantanamo to attend each of these hearings so the government can claim that they’re "public" is astronomical. Meanwhile, federal courts and secure prisons in the United States are readily available and already paid for. And the government doesn’t have to cover anyone’s costs to get there.

I’m in Guantanamo Bay this week to observe the end of Khadr’s pretrial hearings and the beginning of his trial in a military commission. But I doubt I’ll gain any better understanding of why the Obama administration chose to try him there.

Update: Lt. Col. Jon Jackson, Omar Khadr’s military defense lawyer, just gave a quick news conference in the sweltering airplane hangar here at the Gitmo base. (Only prosecutors are allowed to use the indoor air-conditioned rooms for press conferences.) "This case will echo in the future," Jackson said, noting that it will set a sad precedent for the United States’ right to try a child soldier as a full-fledged war criminal.

It will also create a lasting legacy for the Obama administration."Forever the Obama administration will be remembered as starting the military commissions with a case of a child soldier," Jackson said.

Somehow that doesn’t seem like the sort of legacy Obama had in mind when he vowed to close the Gitmo prison down on his first day in office.

The Real Reason Khadr’s Case Is In A Military Commission

10:17 am in Uncategorized by daphneeviatarhumanrights1st

As the government continues to pursue the case of Omar Khadr, it’s becoming clear why the administration chose to try this case in a military commission rather than a regular civilian federal court: a civilian federal court judge would likely throw the case out.

The reason isn’t only that Khadr was, at worst, a child soldier – he was 15 when he was captured in a compound of al Qaeda associates who were friends of his father’s. It’s that his statements recounting what he did before his capture would almost certainly be ruled inadmissible.

Khadr is accused of throwing a grenade in a firefight with U.S. forces in Afghanistan that killed an American soldier. He’s also accused of assisting al Qaeda operatives – all friends of his father’s – in making and laying explosives.

Although almost killed in the firefight, Khadr eventually regained consciousness at the US air base in Bagram, where he was immediately interrogated. Among other things, he provided valuable information about al Qaeda operatives.

Four of his interrogators took the stand last week in a pretrial hearing in Khadr’s war crimes case now pending in the military commission at Guantanamo Bay.

So far, two military interrogators and two FBI agents have described how they ingratiated themselves to the young teenager by bringing him M&M’s, McDonald’s sandwiches and video games. One, an attractive young woman identified only as "Number 11," says she was chosen to question him in the hopes that he would open up to her as "a mother figure." Whether he saw the lithe twenty-something brunette as motherly or something else is questionable. (Journalists at Gitmo last week took to calling this witness "the honeypot.")

Setting aside the ethics of using an attractive young woman to lure an adolescent boy, there’s a striking problem raised by all of the interrogators’ testimony so far: not one read Khadr his rights. That was U.S. policy at the time, because the government’s goal was to obtain military intelligence, not to prosecute crimes.

These days, critics mock the idea that terror suspects should be read Miranda rights – a Supreme Court rule created to ensure the 5th Amendment right against self-incrimination. But what’s become clear in the military commission proceedings last week is the critical role that rule plays: to ensure that confessions are voluntary, and that the suspect knows that his statements could be used against him later.

The aim isn’t to make the suspect clam up, as Senators Lindsey Graham or Mitch McConnell might claim. The idea is, at least in part, that if a suspect doesn’t know how his statements will be used, he may be more likely to make stuff up. How else to explain the many different versions of his story that Khadr told different interrogators?

In one version, for example, Khadr said he remembers throwing the grenade – although he was shot twice in the chest and knocked unconscious moments later. It was the first time he’d ever thrown a grenade, he claimed, so he threw it just like he’d seen it done in the movies. In another version, he told a different interrogator that he’d had lots of training in small arms fire. He never mentioned the movies.

Then there’s the story Khadr told another interrogator, that both of his parents had been killed in a car accident. He told a different questioner that his father had died in Egypt, and his mother had died of cancer.

Khadr also reported enjoying his celebrity among the detainees at Bagram, who recognized his father as a high-level Al Qaeda operative. Khadr boasted to them that he’d killed a U.S. soldier.

Are these statements incriminating evidence that support the government’s case, or boastful talk by a teenager bored out of his mind in prison and eager to please his attractive and generous visitors? It’s worth noting that between interrogation sessions, Khadr had fits of uncontrollable sobbing, crying for his grandmother and acting "suicidal and depressed," as one FBI agent described it in his notes. On the witness stand, the agent attempted to retract that statement: " ‘crying and inconsolable’ would have been more accurate."

Khadr believed, as one interrogator testified, that cooperating and telling them what they wanted to hear would lead to his prompt return to Canada – not to his detention in a U.S. military prison without trial for the next eight years.

As he heads to trial this summer, Khadr is no longer boasting that he threw a grenade or willingly manufactured explosive devices. Now, represented by lawyers, he’s claiming he was abused at the Bagram and Guantanamo prisons, that his statements were involuntary, and that all of them should be suppressed.

The defense team has not yet had an opportunity to call witnesses to support that claim, and it may be impossible get at the truth of what happened in the military commissions. That’s because only the government has the power to compel interrogators to testify. Not surprisingly, those that have testified so far say they were exceedingly nice to Omar Khadr.

But Khadr was questioned by more than 30 different interrogators. His defense lawyers want to interview them all about Khadr’s treatment – including one who the defense says already told the government that Khadr was threatened with rape, confirming one of Khadr’s claims. But the government has refused to make any of the interrogators available to the defense for questioning.

The judge may be able to order some interrogators to appear in court, although he hasn’t done it so far – and the commission rules don’t require it. Issued just last week, the rules say a defendant is not entitled to the same access to evidence that the government has, as he would be in a military court martial. In the military commissions, the defense is entitled only to "reasonable access" to evidence.

If an interrogator is overseas, or is a CIA agent whose identity is secret, is it "reasonable" to require him to appear? The rules don’t say, giving the judge great latitude to say no. It’s not even clear if the judge has authority to compel testimony from a witness in a government agency outside the military. All of this could make it impossible for the defense to even present evidence supporting Khadr’s claims.

After the first week of this hearing, whether or not Omar was abused in prison seems almost beside the point. The government’s own witnesses are portraying him as a child who was victimized by the adults who raised him, then used by U.S. authorities to extract information, which he willingly provided – only to have it used against him years later, after he’d finally become, at least technically, an adult.

The rules governing federal courts – that suspects must be read their rights for their statements to be admissible, that law enforcement must seek the consent of a child’s parent or guardian before questioning him, and that the defense can issues subpoenas to compel witnesses to testify – are not trivial technicalities. They all exist for a reason: to ensure that trials are fair and justice is done.

The Bush administration started the United States down a very rocky path by abandoning those rules in the "war on terror." The Obama administration does not have to continue in that direction.

Omar Khadr, who this past week was apparently so distraught that he refused to attend his own trial, may have given up hope that justice is anywhere in the cards for him. The government still has the opportunity to prove him wrong.

Obama’s First Military Commission Trial: A Child Soldier

11:24 am in Uncategorized by daphneeviatarhumanrights1st

This week, Omar Khadr, the 15-year-old Canadian arrested by US forces in Afghanistan eight years ago, will finally face a trial.

Or not.

Although the defense department’s Office of Military Commissions sent out notices weeks ago saying Khadr’s trial starts this week, the military’s more recent notices to observers suggest that this week we won’t actually see a trial — we’ll see a pre-trial evidentiary hearing instead.

That’s typical of the military commissions, a quasi-court system set up in Guantanamo Bay to try detainees in the war on terror – what the Obama administration calls "unlawful enemy belligerents." (President Bush called them "enemy combatants.")

Regular observers of the military commissions are used to the confusion, misinformation and delay. After all, the military doesn’t post the schedules or documents filed in military commission cases on its web site or any other publicly accessible place, the way the government does for regular federal court trials. But if it’s annoying to observers, for the detainees themselves, who have been imprisoned at the military installation for up to eight years without a trial, the confusing stop-and-start nature of the proceedings have much more serious consequences.

Omar Khadr, for example, has been imprisoned without trial for more than one third of his 23 years. His trial, when and if it goes forward, will be the first military commission trial to be held under the Obama administration.

Accused of throwing a grenade that killed a U.S. soldier in Afghanistan in July 2002, Khadr — a Canadian citizen whose family moved to Afghanistan in 1996 — claims he is innocent. And there appears to be strong evidence to support that. According to a report in the Toronto Star, classified documents in the case indicate that "Khadr was buried face down under rubble, blinded by shrapnel and crippled, at the time the Pentagon alleges that he threw a grenade that fatally wounded a U.S. soldier."

Khadr was captured after a gunfight between U.S. forces and al Qaeda fighters. By the time he landed in US custody, he’d been shot twice in the back and once in the shoulder, struck with shrapnel in his right eye and wounded in his left leg.

When Khadr regained consciousness a week later, U.S. forces brutally interrogated him in the tent hospital at Bagram, he says, shackling him into painful positions and denying him pain medication despite his serious wounds. Even before he’d healed, he was forced into stress positions with his wrists shackled to the ceiling, made to carry heavy buckets of water and clean floors on his hands and knees, and threatened with barking dogs while a bag was tied over his head, according to documents filed by his defense lawyers. Not allowed to use the bathroom during interrogations, Khadr was forced to urinate on himself, he says.

When he was transferred to Guantanamo Bay three months later, the abusive interrogations continued. Khadr says he was beaten, sleep-deprived, and threatened with torture and rape.

That treatment is likely to be the focus of hearings scheduled in Khadr’s case this week. Khadr’ s lawyers claim that his statements in custody should not be used against him at trial because they were the products of torture.

The Military Commissions Act of 2009 prohibits the use of coerced statements except under very narrow circumstances that don’t apply to Khadr’s case.

In another case also involving tortured confessions from an adolescent, a military commission judge ruled that the statements of Mohamed Jawad, an Afghan whose family says he was 12 when arrested, could not be used against him because they’d been coerced by interrogators who’d threatened to kill him and his family. The government eventually dropped the case.

Khadr’s lawyer are hoping their client will get similar treatment. But even if the case proceeds, it has many other problems.

For one thing, Khadr was only 15 when he was captured, and it’s not clear that military commissions have jurisdiction over juveniles. No military commission has tried a child soldier since Nuremberg. Military court-martials don’t try children, and a U.N. treaty on the rights of children in armed conflict ratified by the United States a month before Khadr was detained requires that child soldiers be treated as victims entitled to rehabilitation rather than as combatants to be punished. The Military Commissions Act, for its part, says nothing about jurisdiction over juveniles. And the commissions have no codified procedures or rules.

Equally fundamental is that the military commissions were created to try war crimes. But even if Khadr were guilty of the acts charged – murder, attempted murder, conspiracy, and aiding the enemy – those aren’t really war crimes. At least, they weren’t war crimes until Congress declared them to be in the Military Commissions Act of 2006 — four years after Khadr allegedly committed them. So to try Khadr for war crimes now is a violation of the Ex Post Facto clause of the U.S. Constitution, Khadr’s lawyers point out. (Khadr could, of course, be tried in a civilian court for the crimes of murder and conspiracy.)

Khadr’s case, then, underscores many of the fundamental problems with the military commission system – that it has no rules, little experience, almost no precedent and barely any law to guide it.

So why did the Obama administration decide to make the case of Omar Khadr its first trial in a military commission?

If the administration is hoping to showcase the strength of its military and the president’s tough stance on terrorism, this probably wasn’t the best way to do it.

It’s Not All Fun and Games at “Camp Justice”

4:27 pm in Uncategorized by daphneeviatarhumanrights1st

The thing that first strikes you about Guantanamo Bay’s "Camp Justice" is what an extraordinary effort was made to create something that never needed to exist. Though federal courts have been interrogating, trying and imprisoning terrorists for more than 200 years, for some reason the U.S. government believed after September 11, 2001 that it needed to create a whole new way of doing that. So it set up this sprawling military camp, complete with housing for lawyers, journalists, observers, two new courthouses, hyped-up security with endless coils of concertina wire — all to house a few hundred guys who could have been much more efficiently and just as safely held in high-security prisons in the U.S.

If efficient justice was even part of the goal, the case of Noor Muhammed, who appeared for a hearing in the military commission today, is a great example of just how spectacularly the government has failed.

Noor Muhammed was arrested in March 2002 in Pakistan. He’s been charged with helping to train Al Qaeda militants at a training camp in Afghanistan from 1996 to 2000. The only act he’s charged with that occurred after September 11, 2001 is allegedly trying to evade local authorities by escaping from a safehouse in Pakistan in March 2002.

Noor denies that he was a member of al Qaeda, or an "unprivileged alien enemy belligerent" as the U.S. claims. But though he’s been imprisoned at Guantanamo Bay for eight years, the military commission still hasn’t even held a hearing to decide the answer to that question. If Noor is right, the military commissions don’t even have jurisdiction over his case.

Today, Capt. Moira Modzelewski, the military commission judge presiding at the hearing, announced that the hearing on that issue won’t be held until August.

Still, the government has flown several dozen prosecution and defense lawyers, observers and journalists down to a hearing at Guantanamo Bay that lasted less than two hours. The issue decided? A complicated military bureaucratic question of whether Noor’s previous military defense counsel could continue to represent him now that she’d been ordered by the military to another assignment.

Noor’s lead civilian defense lawyer, Howard Cabot, a volunteer New York-based attorney from the private law firm Perkins Coie, made an eloquent argument in favor of retaining the former military counsel, and ultimately convinced the judge of the importance of their ongoing attorney-client relationship. The judge concluded, however, that she can’t tell the Army what to do, so could only "strongly recommend" that the lawyer be allowed to continue her representation.

Select civilian and military observers and journalists got to watch all this somewhat baffling bureaucratic wrangling through panes of bullet-proof glass in a huge courtroom built to accommodate the trials of the five September 11 suspects – trials which still have not taken place. We were only permitted to hear the proceedings several minutes after they occurred, though, since they’re broadcast on a time-delayed monitor. By the time we heard the court clerk say "All rise," for example, we’d already seen the lawyers in the courtroom rise, the judge enter the room and everyone sit down minutes earlier.

Strangely, this hearing is a small sign of progress, since the military commission proceedings have been largely stalled since President Obama took office and mulled over what to do about them. Human Rights First and many others hoped the administration would terminate the military commission proceeding and try all of the Guantanamo detainees in ordinary federal courts that are experienced at trying terrorist suspects. But that’s not what the administration has decided to do. Instead, it is proceeding with at least a handful of cases in these ill-fated military commissions – Noor Muhammed’s among them.

That the commissions are ill-fated is demonstrated in part by the fact that in 8 years, they’ve held only three trials. Only two of those were contested. And both of those defendants, although convicted, have since been released. By contrast, civilian federal courts have tried more than 400 suspected terrorists since September 11, 2001. HRF has documented 195 convictions of terrorists associated with self-described jihadist or Islamist extremist groups since that time.

But the military commission trials are not even scheduled yet. Today, the judge said that Noor’s trial – much of which will repeat the presentation of evidence already presented at the hearing to decide the court’s jurisdiction over him – won’t be held until sometime next year.

Meanwhile, the 40-something year old Sudanese national, wearing a white shirt and graying beard as he sat quietly in the courtroom observing the proceedings today, has been imprisoned on this military camp without a trial for more than 8 years.

Lately, it’s become almost fashionable to claim that Gitmo isn’t so bad, and is probably better than the supermax prisons where convicted terrorists would go if tried in the United States. Miss Universe, Dayana Mendoza, last year cooed about Gitmo’s beautiful beaches. And a press officer on this trip told me that some of the detainees now even get to take painting classes to keep them occupied.

The military has also reportedly made signficant improvements from the original open-air cages where prisoners were completely exposed to the elements, which in Guantanamo Bay can get pretty brutal.

In fact, for the observers privileged enough to travel here to see the military commission hearings (the general public, including relatives of the suspects imprisoned here, are not allowed to attend), it’s not really so bad at all. I ate at a Taco Bell yesterday, drank beer at an Irish bar last night, am staying in an air-conditioned tent that’s only a few hundred feet from relatively clean, if strangely public, women’s latrines. And if you walk past the military barracks down the road to the beach, the view is positively breathtaking. There’s even a diving shop where we can rent snorkeling equipment and explore the underside of the 80-degree Caribbean waters.

All that relative comfort can lull an observer into forgetting that on the other side of the military base, the side we don’t get to see, men who were seized overseas, many based on statements made by wholly unreliable accusers, have been imprisoned by the United States government without trial – many even without charge – for more than 8 years.

These days, any news about Gitmo is focused mostly on the future trial of Khalid Sheikh Mohammed and his alleged 9/11 terrorist co-conspirators. Although Attorney General Eric Holder announced that trial will take place in federal court in New York, the administration has since wavered and suggested it may bow to political pressure and the irrational fears that have been whipped up to intensify that pressure, and change its mind.

Where the 9/11 trial takes place is extremely important. But it’s worth remembering that there are also more than 150 other prisoners that remain here. Most have been accused of vague, unproven acts of assisting terrorism at some point years ago somewhere overseas. Almost none of them has yet received a trial and few have been charged with any crime.

Caving on the 9/11 Trial Would Send All the Wrong Messages

10:16 am in Uncategorized by daphneeviatarhumanrights1st

The Washington Post reports today that President Obama’s advisors are planning to recommend that the administration reverse its decision to try the September 11 suspects in federal court and instead opt for military commissions. That’s more than just disappointing, given the overwhelming consensus of military and legal experts that civilian courts are more effective for prosecuting terrorists. If the president were to heed that advice, it would also be astonishingly bad politics.

The Post story doesn’t say what President Obama has decided to do, or whether Attorney General Eric Holder, who announced the decision to try Khalid Sheikh Mohammed and his alleged co-conspirators in federal court to much fanfare in November, will go along with those recommendations. But for the administration to reverse itself now on a key legal and strategic decision that critics have made a political hot potato would signal to Obama’s opponents that if they just heat up the rhetoric and prey on people’s fears enough, the administration will cave. And that would be a sorry signal of how this administration plans to determine critical matters of national security.

Recent reports have suggested that Senator Lindsey Graham has been cutting deals with White House Chief of Staff Rahm Emanuel, not only on the 9/11 trials but on passing legislation to secure the indefinite detention of terrorism suspects in exchange for supporting the administration’s efforts to close the prison camp at Guantanamo Bay. To drum up support for his ideas, Graham has been going around denouncing the idea that the United States would "give the mastermind of the 9/11 attacks the same constitutional rights as an American citizen," and insisting that military commissions are the "proper venue" for such trials. Graham neglects to mention in such statements that all criminals in the United States have always had constitutional rights in U.S. courts — these rights are, after all, enshrined in the U.S. Constitution.

And to call military commissions the "proper venue" is to suggest that they have a strong record for convicting terrorists — which, in fact, they do not. Military commissions have convicted precisely three terrorists so far, two of whom have already been released from prison. By contrast, U.S. federal courts have convicted almost 200 self-described Islamic jihadist terrorists since the terrorist attacks of September 11.

None of that matters, however, when it comes to the politics of fear. Since Attorney General Eric Holder announced the decision to try the 9/11 suspects in federal court, his opponents have turned it into the linchpin of their opposition to the administration. At a demonstration in front of the federal courthouse in New York in December, protesters called Obama and Holder "the real terrorists" and demanded their impeachment.

As I stood in the cold rain watching them, I had to wonder, since when did so many ordinary Americans (admittedly many with tea bags hanging from their star-spangled hats) come to care so much about the procedural complexities of the federal judicial system? Why in the past, when the Bush administration prosecuted hundreds of terrorists in this same Manhattan courthouse, had they never claimed that our judicial system was a "moral disgrace" that would allow terrorists to "spew their hate across America"?

Of course, most of those protesters know very little about the U.S. court system and how much more effective it’s been at convicting terrorists and locking them away for life than any military commission has. But some disgruntled Americans, understandably angry and insecure in tough economic times, have been whipped into a frenzy by Obama’s most adamant opponents, who’ve channeled their fears into angry protests about terrorism rather than addressing their real and legitimate concerns.

Perhaps that’s to be expected. But for the Obama administration to cave to that hysteria would send all the wrong messages. It would signal a victory for the politics of fear over the longstanding American tradition of respect for the rule of law. It would showcase a triumph of crass political deal-making over rational, fact-based decisionmaking. For President Obama, it would suggest a profound weakness on his part — a message to his adversaries that if they just make enough of a stink about the decisions they don’t like, then they can change them. And most importantly, it would mean that the administration is willing to sacrifice lasting national security to momentary political expedience. And that would be the saddest statement of all.

Lindsey Graham v. the U.S. Military

11:00 am in Uncategorized by daphneeviatarhumanrights1st

Senator Lindsey Graham (R-S.C.) likes to tout his experience as a former military lawyer. Graham apparently thinks this makes him sound more convincing when he goes around advocating military trials for all suspected terrorists, as he’s been doing lately. Graham’s now trying to get that idea signed into law in a bill he’s introduced in the Senate. A similar provision is likely headed to a vote today in the House of Representatives.

The odd thing is, in doing this, Graham is going up against a huge and rapidly-growing number of military leaders — including Defense Secretary Robert Gates himself — who say that forcing the government to try suspected terrorists in military commissions is a really bad idea.

In October, Gates joined Attorney General Eric Holder in a letter to Senators urging rejection of the Graham amendment. Noting that the Pentagon and Justice Department now work jointly to evaluate every terrorism case, they wrote that "it would be unwise, and would set a dangerous precedent, for Congress to restrict the discretion of either department to fund particular prosecutions."

As the defense secretary put it: "We must be in a position to use every lawful instrument of national power — including both courts and military commissions — to ensure that terrorists are brought to justice and can no longer threaten American lives."

Then on Sunday, former Secretary of State General Colin Powell, who served in both the Bush I and Bush II administrations, made the point that civilian federal courts have been far more effective than any military commissions.

"In eight years the military commissions have put three people on trial," said Powell. "Two of them served relatively short sentences and are free. One guy is in jail." Meanwhile, the civilian court system "has put dozens of terrorists in jail and they’re fully capable of doing it. So the suggestion that somehow a military commission is the way to go isn’t born out by the history of the military commissions."

In an apparent reference to Graham, Powell added:

"I think a lot of people think, ‘just give them to the military and the military will hammer them.’ Well, guess what? Officers in the military are obliged to follow the Constitution. Military lawyers are obliged under their oath to give the best possible defense to the defendant no matter whether he’s a terrorist or not. And so you didn’t get out of the military commissions what a lot of people thought at the beginning you would get and a lot of us did not think it was a good idea in the beginning."

Even the former chief judge of the Army’s Court of Criminal Appeals in the JAG Corps disagrees with Lindsey Graham, despite Graham’s former JAG credentials.

Military investigators know how to get information on an actual battlefield, Retired Brigadier General James P. Cullen told the New York Times the other day. But prosecutors and FBI agents are better able to link intelligence to track down more terrorism suspects. They’re also better at winning convictions.

"You’ve had about 800 cases that were supposed to be run through the military commissions in Guantanamo, and there have only been three convictions," said Cullen. "You have three-eighths of 1 percent return on military commissions, versus 90 percent plus when they are tried in the federal court."

Okay, but what about all those lawyers who Graham says will tell their clients not to talk? As Graham put it recently: "Is reading Miranda rights to terrorists any way to fight a war?"

Actually, retired 4-star General Colin Powell doesn’t have a problem with that.

"I have no problem with them being tried here in the United States," said Powell. "We have two million people in jail. They all have lawyers. They all went before the court of law and they all got hammered. We have got three hundred terrorists who have been put in jail not by a military commission but by a regular court system."

As for Khalid Sheikh Mohammed, who Graham seems to think has special powers that will be unleashed against Americans as soon as he enters a federal courthouse, Powell said: "I have no problem with him being tried in our federal system here in the United States."

Here’s what four other retired generals had to say about Lindsey Graham’s idea back in September:

"We believe that it would be wrong to treat the leaders of al Qaeda as warriors deserving of military trials," said Retired Rear Admirals Don Guter and John Hutson, and Retired Brigadier Generals David Brahms and James Cullen in a letter to President Obama.

"America’s well established system of civilian justice is not just well equipped to handle these cases, it is far better suited to the task of discrediting and defeating the terrorist enemy we face. When the planners of 9/11, including Khalid Sheikh Mohammed, are finally brought to justice, it will be an extraordinarily important moment in the struggle against terrorism. If these trials are held before civilian judges and juries, it will highlight the strength and legitimacy of our system of justice, and at long last focus the world’s attention where it belongs: on the crimes these men committed against us, rather than on how we are treating them."

Even the new-and-improved military commissions will not be able to achieve that, the military men warned. Not only are they still tainted with the stigma of Gitmo, but their questionable legitimacy will become a tactical advantage for terror suspects.

"Defendants before military commissions will have the advantage of being able to challenge the legitimacy of the system in which they are being tried, instead of simply having to face the evidence against them." That will further delay justice: "Particularly in the most prominent terrorism cases, our nation cannot afford more legal controversy and doubt; and we will not have another chance to get this right."

Even if the military commissions were flawless, military leaders claim that giving terrorists warrior status only bolsters their cause.

"Like virtually all terrorists throughout history, al Qaeda members want to be seen as soldiers, not as criminals. That warrior mystique helps them recruit more misguided young men to their ranks, and justifies, in their own minds, the murder of their enemies. This is why al Qaeda has always described its crimes as acts of ‘war.’ "

Counter-terrorism advisor John Brennan has said exactly the same thing.

And in January, a group of 33 different retired military leaders, with experience in every war the U.S. has waged since 1941, came together to urge President Obama not to treat terrorists as warriors deserving of special military tribunals.

"Some have suggested that suspects like Umar Farouk Abdulmutallab, the man accused of attempting to bomb Flight 253, do not deserve the protection provided in our federal courts and should instead be subject to military tribunals," they wrote. "On the contrary, we believe that Abdulmutallab and his ilk should be treated as the would-be mass murderers they are. To bestow on him and others like him the designation of "enemy combatant" reinforces their claims to be jihadist warriors. They are not warriors. There is neither nobility nor ideological justification in murdering innocent civilians." As for the claim that they’ll get a high-profile platform to spew their hateful ideologies, the military leaders wrote: "On the contrary, we are confident that these trials will showcase America at its best, a nation of laws."

So the overwhelming majority of actual military leaders, with hundreds of years of military experience behind them, all disagree with Lindsey Graham.

I know Senator Graham spent six and a half years as an Air Force lawyer, but he’s never prosecuted a single terrorist. After all, that’s not what military lawyers do. For the most part, they prosecute and defend U.S. military personnel for mostly minor crimes.

So who should we believe?

I think Judge William Young, the federal court judge who sentenced "shoe bomber" Richard Reid to life in prison without parole after the Bush administration won his conviction in a civilian trial, put it best when he said to Reid at his sentencing:

"You are not an enemy combatant.

"You are a terrorist.

"You are not a soldier in any war.

"You are a terrorist.

"To give you that reference, to call you a soldier, gives you far too much stature. Whether it is the officers of government who do it or your attorney who does it, or if you think you are a soldier.

"You are not–you are a terrorist.

"And we do not negotiate with terrorists.

"We do not meet with terrorists.

"We do not sign documents with terrorists.

"We hunt them down one by one and bring them to justice.

"So war talk is way out of line in this court. You are a big fellow. But you are not that big."

Remember the OPR Report?

3:03 pm in Uncategorized by daphneeviatarhumanrights1st

A year ago today, Senators Richard Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.) sent a letter to the Department of Justice inquiring about the status of the Office of Professional Responsibility’s investigation into the conduct of Justice Department lawyers who authorized the abuse, humiliation and torture of detainees in U.S. custody.

The Senators were assured that the report had been completed; it has yet to see the light of day.

Last March, the administration explained that the holdup was because the attorneys representing the lawyers who had authorized torture wanted time to review the report and comment on it — and presumably to suggest revisions.

But even as the lawyers wrangled over the wording, the report’s conclusions were apparently so disturbing that in August, Attorney General Holder announced that his decision to open a preliminary review into the abusive interrogation of certain detainees was based in part on the findings and analysis of the OPR report – which still had not been released.

In November, Holder once again told Senators on the Senate Judiciary Committee that the report was completed, was in "its last stages of review," and that by the end of the month "the report should be issued."

That was three months ago. So where’s the report?

In January, news accounts revealed that the latest version would not recommend that the lawyers whose work laid the foundation for the Office of Legal Counsel’s conclusions on abusive practices — John Yoo and Jay Bybee — be referred to their state bars for ethics violations. Earlier versions reportedly did recommend that they be referred to state disciplinary authorities for sanctions, including revocation of their licenses. Yoo is now a law professor at the University of California, Berkeley; Bybee is now a federal appeals judge with life tenure. Apparently their attorneys had the last word.

Regardless of the Justice Department’s official recommendations, the report – including all the relevant facts revealed during the investigation of the attorneys’ conduct about how they came to authorize torture and other illegal acts – ought to be produced publicly.

Last June, Human Rights First, along with 12 other human rights groups, appealed to Attorney General Holder to release the report and live up to the administration’s promises of transparency and accountability. As the groups wrote then, release of the report is critical to demonstrating that the U.S. government has in fact made a clean break from past abuses and renounced the excessive secrecy and defective legal reasoning that marred the United States’ reputation as a country that upholds the rule of law. The United States is also legally obligated under the Convention Against Torture to investigate and hold accountable those who participated in the torture and abuse of detainees in U.S. custody; the laawyers who authorized those practices are not exempt from such an investigation.

Still, eight months after human rights groups sent that letter, and a year to the day after Senators Durbin and Whitehouse sent theirs, we still have no idea when the OPR report will be released, or what is now holding it up.

The longer the administration hems and haws and tinkers with the ethics report before releasing it, the more the stain of the past administration’s transgressions becomes its own. It’s high time for the Justice Department to come clean.