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“Just Imagine”…Unchallenged, Government Tells Supreme Court While Torturing: “The United States Is Gonna Honor Its Treaty Obligations”

6:10 pm in Uncategorized by powwow

David Cornwell (British author John le Carré) speaking in a March, 2002 interview:

The Cold War was fought under a constant mystery: How much can we do in defense of a free and decent society and remain a free and decent society that is worth defending? So there was always a very great unease, particularly in the secret world, about the methods with which we protected our virtue, as we saw it.

[...]

When you’ve got a preconception, you can always decorate it with slightly bent intelligence.

On this ninth anniversary of the opening of the notorious American prison camp built on a U.S. Navy Base at Guantanamo Bay, Cuba to hold, and, above all, to interrogate, foreigners claimed to be law of war combatants, I’ve transcribed below part of a recent interview of an English-speaking detainee – a citizen of Britain – who was transported by cargo plane from Afghanistan to Guantanamo’s Camp X-Ray in February, 2002.  [His two British companions, Shafiq Rasul and Asif Iqbal - they're collectively known as the "Tipton Three" - were flown to Cuba a month earlier, on January 13, 2002, two days after the prison camp opened nine years ago today, 1/11/11.]

That former detainee is Ruhal Ahmed, and the transcribed portion of his joint interview with Shafiq Rasul (made especially poignant and compelling by the presence of Ahmed’s young daughter), which was conducted in East London by British writer Andy Worthington last September 18th – nine years to the day after President Bush signed the never-rescinded Congressional Authorization for Use of Military Force (war) against the perpetrators of 9/11/2001 – may be viewed here (starting about five minutes in; don’t miss Shafiq Rasul’s account in the first two minutes of the clip):

Interspersed with my transcript of Ahmed’s account of his pre-April, 2004 Guantanamo experiences, is my transcription of an exchange that took place in open court in the United States Supreme Court, on April 28, 2004, as two of the justices questioned the appointed representative of the U.S. government at the time, Deputy Solicitor General Paul Clement of the Executive Branch’s Department of Justice. Clement was resisting, in the name of the President and Congress and the American people, the efforts of another wartime detainee – U.S./Saudi citizen Yaser Hamdi – to have his claim, of being unlawfully detained as an armed-conflict combatant, heard and adjudicated by a neutral decision-maker in our independent Judicial Branch of government, or elsewhere.

Ruhal Ahmed and his two companions were seized by Northern Alliance forces in northern Afghanistan (where they’d been touring the area prior to attending the wedding of Iqbal in Pakistan, apparently partly in search of “dope,” but without even a tangential connection to any armed conflict, if one can prove a negative) in late November, 2001, were soon transferred to the custody of American Special Forces troops in Afghanistan, and then forcibly flown in January and February, 2002 to Guantanamo Bay, Cuba, where they were held, abused, and interrogated, until released to British custody – without explanation, apology, or reparations from the United States President or Congress then or since – in March, 2004.

Ahmed’s appallingly-abusive treatment and torture, while in American military custody in Afghanistan and Guantanamo, were detailed at length in a joint public account by the three British friends on July 26, 2004, part of The Guantánamo Testimonials Project of the University of California at Davis’s Center for the Study of Human Rights in the Americas (CSHRA). That laudable academic project has been voluntarily compiling, during the abdication of Congressional oversight and DOJ enforcement of the law against powerful government actors, the evidence of crimes committed by agents of our federal government, that other members of our government should have been compiling and using to impeach and prosecute, years ago.   Some excerpts from that written account:

80. During the first several weeks [in Guantanamo] the American interrogations with all three [men] consisted of pressing them to ‘just say you’re a fighter’. Asif [Iqbal] was told ‘if you just say you’re a fighter, because of the Geneva Convention when the war is over you’ll get sent back to England’. [Ruhal Ahmed] was told ‘just say you’re a fighter and you’ll go home’. He was told ‘you’ve come to kill American and British soldiers, coalition forces’. They talked about ‘allied forces’. They referred to the Northern Alliance as being the same as ‘allied forces’.

[...]

98. The interrogators very rarely introduced themselves. Occasionally they lied about the organizations they worked for and all three men believe the names they gave were almost always false. This misinformation was quite common. As an example, on one occasion [Ruhal Ahmed] told an investigator that one of her colleagues from the FBI had kept him in the interrogation room for 18 hours (this was in Camp Delta). He described the interrogator. The person to whom he was complaining told him that he knew the woman and that she was not from the FBI but from Military Intelligence.

99. In relation to the interrogators, they generally changed. It was very rare to have the same interrogator on a regular basis. Shafiq [Rasul] says ‘I only ever saw the same interrogator on three occasions at the most’.

100. The organizations that were involved in the interrogations included the CIA, FBI, DOD, MI5, NCI (Navy Crime Investigators), NSA, Army CID.

[...]

Camp Delta – Conditions
124. After Camp X-Ray all three were transferred to Camp Delta about May 2002. The conditions in Camp Delta were more permanent than those in Camp X-Ray. The cells were made out of large shipping containers. The sides at either end had been removed as had the front. Inside each container they had constructed 6 mesh cages. The back wall, the floor and the roof were from the metal container but the side walls and the front were made of mesh. In the back wall there was cut out a square to act as a window, but this also had thick mesh across it.

[...]

Interrogations at Camp Delta
170. In relation to the interrogation blocks at Delta, they fell into the following categories: yellow building, brown building, gold building, blue building, grey building and orange building. All the booths either had a miniature camera hidden in them (it was possible to see the cameras in the air vents) or they had one way glass behind which sometimes it was possible to make out other individuals using video cameras. Asif [Iqbal] states that ‘during one particular interview with MI5, I remember seeing people behind the MI5 man filming me. Most of the interrogations in Camp 1 were in the brown or the yellow building. After they built Camp 2, most of the routine interrogations took place in the gold building and the brown building was then used for the torture’.

[...]

220. After about a week [at one point, a year or more into detention] I [Asif Iqbal] was taken to interrogation [from isolation]. I was taken there by guards from 9/4. These were the Rhode Island, Massachusetts Soldiers. They had a reputation for the worst violence. I remember once General Miller had to investigate them for using excessive force as they had beaten up one man who ended up as a cabbage.

[...]

234. After about three months in isolation we were all brought out and moved to Kilo block [as, unknown to them, the time for their release neared]. This was a normal block that was also run by Intel as opposed to the Army. The three of us were placed in this block and we were no longer in isolation, we were allowed to talk to each other [all the cells were bugged].

Like every other Guantanamo prisoner, including the 173 who remain in custody today, after the release or death of the rest of the peak population of almost 800, Ruhal Ahmed was held without benefit of Prisoner of War (POW) status or treatment, despite being denied the Article 5-compliant screening mandated by pre-existing U.S. Army regulation, or any judicial or Congressional review of his detention conditions – which were in clear (and willful) violation of the Third Geneva Convention, and Common Article 3 minimum humane treatment standards (both the law of the land), for more than two years.

The U.S. President and Congress ought to be required to read the Third Geneva Convention (part of our “treaty obligations”), sometime.  It requires, in part, for screened and unscreened (default) POWs, that:

Art 13. Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.

Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.

Measures of reprisal against prisoners of war are prohibited.

Art 14. Prisoners of war are entitled in all circumstances to respect for their persons and their honour.

[...]

Art 17. Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information.

[...]

No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.

[...]

Art 25. Prisoners of war shall be quartered under conditions as favourable as those for the forces of the Detaining Power who are billeted in the same area. The said conditions shall make allowance for the habits and customs of the prisoners and shall in no case be prejudicial to their health.

The foregoing provisions shall apply in particular to the dormitories of prisoners of war as regards both total surface and minimum cubic space, and the general installations, bedding and blankets.

The premises provided for the use of prisoners of war individually or collectively, shall be entirely protected from dampness and adequately heated and lighted, in particular between dusk and lights out. All precautions must be taken against the danger of fire.

[...]

Art 48. In the event of transfer, prisoners of war shall be officially advised of their departure and of their new postal address. Such notifications shall be given in time for them to pack their luggage and inform their next of kin.

They shall be allowed to take with them their personal effects, and the correspondence and parcels which have arrived for them. The weight of such baggage may be limited, if the conditions of transfer so require, to what each prisoner can reasonably carry, which shall in no case be more than twenty-five kilograms per head.

Mail and parcels addressed to their former camp shall be forwarded to them without delay.

[Etc.]

In April, 2004, the month after Ruhal Ahmed was transferred to British custody from U.S. military custody, after enduring Guantanamo detention conditions so intolerable that months earlier he’d “confessed” to being a part of Al Qaeda and having foreknowledge of the 9/11 attacks, Deputy Solicitor General of the United States Paul Clement told the justices of the United States Supreme Court that “the United States is gonna honor its treaty obligations” in the Executive Branch’s classified, unsupervised detention of foreign citizens – over whose fates the president and military assert unilateral control during the (still-ongoing) war against those non-uniformed 9/11 terrorists (and their accomplices) who survived the 2001 suicide attacks.  Clement further declared to the nine high court justices that the Executive Branch alone can and will “constrain the actions” of government agents, so as to make otherwise-unenforced treaties “binding” and capable of preventing the torture or abuse of helpless presidential prisoners, when it’s left unchecked and unsupervised by the other two branches of government.

Judge for yourselves the veracity of our government’s word, as asserted in person to the justices of the United States Supreme Court.

Ruhal Ahmed, ISN 110, describing, last September, what he experienced in Guantanamo Bay detention camps before April, 2004:

The frequent flyer program means basically a detainee is picked by his interrogator, simply because maybe he’s, they think he’s a high profile. What they would do – every fifteen minutes you would move, they would move you from cell to cell, throughout the clock. So, if you should imagine – to move a person, it takes at least twenty minutes – the procedure, to move someone. They need to be shackled, which takes about ten minutes. The door needs to be opened, there have to be three guys who need to escort the person to another cell. Um, it’s not like you go, you move from cell one to cell two – you could be from cell one, which is in Alpha Block, to Block B or Block C. So you can just imagine how long it takes for a person to be transported from one place to another. And that would happen every fifteen minutes. So I mean, as soon as you get into your cell, fifteen minutes from that time, you’re gonna get moved again, throughout the clock. So just imagine moving, and getting moved again, every fifteen minutes of the day.

You can’t sleep, for week upon weeks. Some brothers went through it for months. And eventually you become, you become like a vegetable. You know – you have no control over your head, you know, of your body. You’re just, look a zombie, living a zombie… Eventually, you can’t, you can’t kneel down… Because we had to kneel down to get shackled up, to get prepared to move from cell to cell. But what they do – because you’re so tired and so exhausted of being moved and moved to place to place, what they would do is walk into your cell and they’d kind of drag you to the next cell, to the next block. That’s the frequent flyer program.

Hamdi Supreme Court Oral Argument on April 28, 2004:

Justice John Paul Stevens [addressing Deputy Solicitor General Paul Clement]: It sounds from your argument that the principal interest that the government wants to advance is the ability to interrogate the person [in Guantanamo or elsewhere] for a sufficient length of time to determine whether they’ll get valuable information out of them or not. And to deny him counsel during the period – that period – because he may not be as willing to talk. Now it seems to me there are two things about that I wanted to ask you about: One, have you considered the possibility that perhaps a lawyer would’ve explained to this man that if you do give some information, you won’t have to stay here incommunicado for two or three years; that might be a motivation to talk. That’s one possibility.

Ruhal Ahmed, ISN 110, describing, last September, what he experienced in Guantanamo Bay detention camps before April, 2004:

Then you, then you have obviously ah, the – where they would limit your food. If you are in isolation they would limit your proportion of the food. You weren’t getting huge amounts of meals, like we get here [referencing his London location], and especially [unintelligible, to the audience with a smile]. But just imagine them getting, you know… What we used to get in a normal, in a normal blocks we’d get… Let me, how should I put this now… Just imagine, you get two pieces of bread, ahm, and probably enough sauce just to wipe that plate clean. That’s your meal, you know. And breakfast would be even smaller, you know, and lunch you would get literally nothing. So, you know, just imagine them controlling your meal now. So, you know, you don’t even get half of that or a quarter of that, if you’re on that program. And on top of that, you’re isolated. You know, you’re in isolation, you can’t speak to nobody. You can’t talk, you can’t go out your cell. You don’t get to go to the showers, for recreation, and so on.

Hamdi Supreme Court Oral Argument on April 28, 2004:

Justice Stevens: And the second thing I wanted to ask you about: Are there any cases in the international field or the law – anywhere – explaining that the interest in detaining a person incommunicado for a long period of time for the purpose of obtaining information from him is a legitimate justification for it? I understand arresting on the battlefield – that’s perfectly clear. But is this prolonged detention for that purpose the subject of judicial writing anywhere that you know about?

Deputy U.S. Solicitor General Paul Clement: Let me answer both parts of your question, Justice Stevens. [...]

Ruhal Ahmed, ISN 110, describing, last September, what he experienced in Guantanamo Bay detention camps before April, 2004:

Basically, in 2003, that’s when the condition of the prison got extremely worse, when General [Geoffrey] Miller was put in power. Um, and basically – before that it was not as bad, but when General Miller came in power, when he became the General there, they started introducing short-shackling, hot and cold temperatures, isolation for long periods of time, the frequent flyer program, and so on. So what that means is basically if you’re classed as a high-profile person, these things would apply to you, and you would have all these kind of things happening to you. You’d go to interrogation on a daily basis, be short-shackled.

Short-shackled is – I don’t know if you guys know what a “three-piece suit” is – it’s… If you watch American films, when the prisoner gets arrested, they put handcuffs on him which has a link on the chain that falls to the feet, it’s like – they call it a “three-piece suit.” And when you walk, you actually shuffle like a penguin. The restriction of the shackle itself is quite tight. The short-shackle – what they do is they put you in a room and there’s a hook on the floor. And they uncuff your hands, get a separate pair of cuffs, cuff your hands, make you bend down, and they put that link where the shackles is in that hook, padlock that, force you to bend down, put your hands behind your back, and get a second pair of cuffs and cuff you. Just imagine your hands being cuffed where your ankles are. And that’s short-shackling. Which means you can’t actually sit flat-footed. So you have – you’re constantly on your toes and the ball of your foot. If you go forward, it cuts into your wrists. And if you go backwards, it cuts into your ankles. So you can be in that position for days, sometimes for two, three days. I mean, I went through it for about 2 and a half days, I think Shafiq [Rasul] did the same. But some brothers, especially the Arab brothers, they went through it for a longer period of time. That’s short-shackling.

Hamdi Supreme Court Oral Argument on April 28, 2004:

Clement: I think – to get to your second part of the question – I don’t know that there are any authorities that I’m aware of that address exactly what you’re talking about. But I think there’re two types of authority that we would point to as being very important. First of all, it’s long been recognized that one of the major justifications for the detention of enemy combatants or prisoners of war is to gather intelligence, and we cite some sources to that effect in the brief. The second thing – and I think this is important – is that is has never been the case that prisoners of war are entitled to counsel to challenge their capture or their detention. What has happened historically, and what the Geneva Convention provides, is that if one of those enemy combatants is charged with a specific war crime, then at that point they are entitled to counsel. But if they are just being held in a preventative detention, then, in that circumstance, they are not entitled to counsel.

Ruhal Ahmed, ISN 110, describing, last September, what he experienced in Guantanamo Bay detention camps before April, 2004:

And then, obviously, if you have to urinate or go – you know, if you need to take a number two – you’d have to urinate on yourself and defecate on yourself. You wasn’t allowed to pray. During that period, they would have extremely loud music, they would have strobe lights. And you – just imagine being in that room. It’s a very small room, it’s a very, you know, confined room. It’s only like about two by two, if that. And it’s kind of sound proof. So they’ve got a system in there, and they’re playing – you know, most likely it was heavy metal music, with strobe lights. So it’s like you were being in a night club, but it’s not, you know.

And eventually, after being there for 3, 4 hours, you know – first of all, it’s the pain that’s killing you. Then afterwards, you know, you try to kind of concentrate on other things to kind of relieve yourself of the pain – think about things. But when the music’s on, it’s in your ears, constantly, and eventually you can start hearing every instrument that’s playing. Every note. At the same time they would come in with dogs and interrogate you – you know, dogs would be right, you know, by your face, barking. Um, and throwing, you know, kicking you, punching you, asking you to sign confessions – you know, you’re Al Qaeda, you’re this and that. And through – you’re just thinking in your head, you’re kind of – your mind goes blank.

Hamdi Supreme Court Oral Argument on April 28, 2004:

Justice Stevens: May I ask just one other question – I think it’s just relevant… Do you think there’s anything in the law that curtails the method of interrogation that may be employed?

Clement: Well, I, I think there is, Justice Stevens, I mean…

Justice Stevens: And what is that?

Clement: Well, I mean, just to give one example – I think that the United States is signatory to conventions that prohibit torture and that sort of thing. So that’s – you know, the United States is gonna honor its treaty obligations. The other thing that’s worth mentioning, of course…

Ruhal Ahmed, ISN 110, describing, last September, what he experienced in Guantanamo Bay detention camps before April, 2004:

And eventually you start hearing things and seeing things – even when they’re gone, you think they’re still there. So it kind of takes over your mind. And eventually I think me and Shafs [Rasul] and some other brothers who were subject to these kind of things, we all signed a confession. We, you know, we came to the point – where, you know, we came to the point, because I [had stayed there?] for about five months, as well [the video "evidence"/"confession" was apparently more than a year into his detention - pow wow]. And I said, I said to myself, you know – I’m in Guantanamo, it can’t get worse, let me just sign this piece of paper, and let me see what happens. Because if they take me to court, it’s better for me – you know, at least I can, I can tell my part of the story, and I’ll probably have a lawyer.

Hamdi Supreme Court Oral Argument on April 28, 2004:

Justice Ruth Bader Ginsburg: But you said about, something about self-executing in connection with Geneva Convention. You said well, it’s not self-executing. Would you say that – the same thing – about the torture convention?

Clement: Justice Ginsburg, I actually have the sense that, that, that, that the Torture Victim – I mean, you have the Torture Victim Protection Act, of course, which I think doesn’t actually apply to the United States, so I’m not sure that there would be any other basis for bringing a private cause of action against the United States. But as this Court noted in Footnote 14 of its Eisentrager opinion, the idea that a treaty is gonna be enforced through means other than a private cause of action doesn’t mean that it’s not a binding treaty, doesn’t mean that it’s not gonna constrain the actions of the Executive Branch.

Ruhal Ahmed, ISN 110, describing, last September, what he experienced in Guantanamo Bay detention camps before April, 2004:

So we all went into interrogation, and they had these photos. And there’s a video of bin Laden giving a speech, and there’s a crowd, just like yourself, just sitting there. And there was Mohammed Atta there. And behind him, apparently, there’s three of us – me, Shafiq [Rasul] and Asif [Iqbal]. And there was like – the pictures were a still of a video, so it was very, very poor quality. You couldn’t even see the person’s face. But simply because, in my interrogation, I said I was wearing an Adidas tracksuit bottom – and this guy had a tracksuit top, just like yourself [pointing to someone in the audience] – and they said, oh, this is you – yeah, I mean… And it was just amazing, and I thought ‘okay, yeah, that’s me’ – I said give me a piece of paper. And we all signed it. We all signed to say we were part of Al Qaeda and we knew about 9/11 and blah, blah, blah. And, Hamdallah, it stopped – all the bad feelings stopped. Which was amazing. And, I thought, why didn’t they just say/send that the first day we got there. You know. And after, you know, a few months we was released, which was quite, really strange.

[Note: The referenced bin Laden video was dated either January 8, 2000 (1/8/00) or August 1, 2000 (8/1/00), the U.S. did not know which (and didn't reveal either date to the detainees for some time). There were records in England proving that both Ahmed and Rasul were present in England on both of those dates in 2000, which, with diplomatic efforts for and by the U.K. (Tony Blair) late in 2003, apparently helped lead to the release from Guantanamo of Ahmed, Rasul and Iqbal in March, 2004 - despite their having already "confessed" in writing, weeks or months earlier, to being, among other things, "part of" Al Qaeda, informed about 9/11 planning, and out of England and in the bin Laden speech audience abroad, near 9/11 hijacker Atta, on one or both of those dates in 2000. - pow wow]

Hamdi Supreme Court Oral Argument on April 28, 2004:

Clement: Just to finish up my answer to Justice Stevens’s question – I wouldn’t want there to be any misunderstanding about this. It’s also the judgement of those involved in these processes that the last thing you wanna do is torture somebody or try to do something along those lines. I mean, if there were an artificial – if you did that, you might get information more quickly, but you’d really wonder about the reliability of the information you were getting. The judgement of the people who do this as their responsibility is that the way you get the best information from individuals is that you interrogate them, you try to develop a relationship of trust…

Ruhal Ahmed, ISN 110, describing, last September, what he experienced in Guantanamo Bay detention camps before April, 2004:

But that’s why it happens, you know, when you are subject to this kind of treatment, you eventually break, you eventually crack. Some people go to the extreme of, you know, trying to kill themselves. I witnessed many brothers who tried to hang themselves, to cut themselves, with the plates – the plastic spoons and knives, you know, to sharpen them up. Whatever method they tried, they wasn’t successful. But obviously two were – two brothers did manage to kill themselves, apparently. But, you know, it’s quite hard to believe, ’cause everyone’s tightly controlled. It’s impossible to kill yourself in Guantanamo. [Beginning of the third video clip, available for viewing here; Rasul describes seeing and talking to Omar Khadr in Guantanamo later in this clip.] But nevertheless people do try – brothers do try and especially the brothers who have families. Not the ones who are single. It’s usually the ones who are married, who had kids, who had more of a responsibility, unlike myself, at that point.

That’s what, eventually, you think about. I’m not going to say here, myself and I’m sure Shaf [Rasul] – we’ve considered to kill ourselves, because it’s the position that they put you in, and the stress you go through. Not having your family there, you know, not being able to talk to your mum, your father, your brothers, your sisters. Not being allowed to have a letter – like Shaf [Rasul] said, my mother sent me a letter which my sister wrote, and the first line was “How are you, son?” At the end – it was all, the middle was all crossed out – at the bottom “I love you, Mum.” I mean, how much hope do you get from a letter? And there’s no hope, and you think of, you think of killing yourself. That’s what happens. Hamdallah, you know, most brothers would help you, you know, talk to you and say, that’s not the right thing to do, have patience, until that patience comes through.

As Lynn Parramore recently noted about just one aspect of what Ruhal Ahmed and hundreds of others endured and continue to endure in Guantanamo’s prison camps, in her important and timely New Year’s Eve post “Tortured Until Proven Guilty,” focusing on the months-long abusive military confinement of American Bradley Manning, in advance of his trial in the regular Executive Branch-operated, UCMJ-governed military justice system (a military justice system that Congress and the President deliberately undermined, by carving out exceptions to prevent its application to the small minority of Guantanamo detainees formally accused of committing war crimes):

Charles Dickens had a keen interest in prison conditions, having witnessed his father’s detention in a Victorian debtor’s prison. When he heard about the latest American innovation in housing convicts, he came to see for himself. At Philadelphia’s Eastern State Penitentiary, the wretches he found in solitary confinement were barely human specters who picked their flesh raw and stared blankly at walls. His on-the-spot conclusion: Solitary confinement is torture. Dickens wrote:

I believe that very few men are capable of estimating the immense amount of torture and agony which this dreadful punishment, prolonged for years, inflicts upon the sufferers…I hold this slow and daily tampering with the mysteries of the brain, to be immeasurably worse than any torture of the body: and because its ghastly signs and tokens are not so palpable to the eye and sense of touch as scars upon the flesh; because its wounds are not upon the surface, and it extorts few cries that human ears can hear; therefore I the more denounce it, as a secret punishment which slumbering humanity is not roused up to stay.

A man who had seen his share of inhumanities, Dickens pronounced solitary confinement to be “rigid, strict, and hopeless…cruel and wrong.”

That was 1842. Since then, piles of scientific studies, along with the vivid accounts of victims, have confirmed what was obvious to Dickens.

[...]

The placement of human beings in solitary confinement is not a measure of their depravity. It is a measure of our own.

by powwow

Supreme Court Friday: Secret D.C. Circuit Court of Appeals proceedings (overruling lower court), allowing Obama DOD to rendition Guantanamo prisoner fearing torture to Algeria, may execute before appeal is heard

6:31 pm in Uncategorized by powwow

Here’s the pitiless, anodyne legal formalism behind which a man’s life or liberty likely hangs in the balance:

FRIDAY, JULY 16, 2010

ORDER IN PENDING CASE

10A52 MOHAMMED, FARHI V. OBAMA, PRESIDENT OF U.S., ET AL.

The application for stay presented to The Chief Justice and by him referred to the Court is denied.

Justice Ginsburg, with whom Justice Breyer and Justice Sotomayor join, dissenting.

I would grant the stay to afford the Court time to consider, in the ordinary course, important questions raised in this case and not resolved in Munaf v. Geren, 553 U. S. 674 (2008).

The Supreme Court, of course, is on vacation until October, having left unaddressed and unresolved during this term crucial questions, and left unreviewed crucial panel decisions of the lower D.C. Circuit, which directly impact the fate of Guantanamo prisoners. [Chief Justice Roberts, for example, who was responsible for hearing bin Mohammed's plea to reinstate Judge Kessler's injunction this week, will be lecturing about the American Bill of Rights - the Fifth Amendment, the Sixth Amendment, etc. - in Australia later this month...]

Farhi Saeed bin Mohammed, however, like every other Guantanamo inmate, is not on vacation. He won his habeas corpus appeal last November. [Translation: Independent federal District Judge Gladys Kessler, after hearing all the evidence the government could muster about his pre-capture activities, while detaining this man for seven years, using its many Pentagon and DOJ resources and outsourced torture-state contractors, determined in an adversarial proceeding with a pro bono civilian attorney acting on bin Mohammed's behalf, that it was not "more likely than not" that bin Mohammed was a participant in the conflict authorized by the 2001 AUMF (against forces responsible for the 9/11 attacks), and therefore that he has been unlawfully detained by the American military under the law of armed conflict since February, 2002.]

As of yesterday, however, bin Mohammed was still a prisoner at Guantanamo, despite having made an emergency motion in May to effect his release to a nation other than Algeria, where he fears for his life at the hands of both the government and terrorist gangs in that nation.

Lyle Denniston at scotusblog.com, who has been all over this story (as has Josh Gerstein of Politico), puts the recent events that culminated in Friday evening’s ruling by a Supreme Court majority – consisting of Justices John Roberts, Jr., Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito, Jr. – into plain English:

Lyle Denniston | Friday, July 16th, 2010 7:44 pm

UPDATE Saturday 5:50 a.m. Late Friday night, the Court, without noted dissent, refused to delay the transfer of a second Algerian, Abdul Aziz Naji. The order is here.

——————–

In the first indication that the Supreme Court will not allow federal judges to interfere with government controls on who leaves or stays at Guantanamo Bay, the Court Friday evening cleared the way for the transfer of an Algerian detainee to his home country over his protest. The action divided the Court 5-3; the dissenters noted that the case involved “important questions” the Court has yet to answer. The Court’s action was not a final ruling on those questions; rather, it was a refusal to block a lower [D.C. Circuit panel] court order letting the government, not a judge, decide the transfer issue.

While the order would not prevent lawyers for the Algerian, Farhi Saeed Bin Mohammed, from going ahead with an appeal seeking to challenge his transfer, such an appeal very likely would lose all of its significance if the government opts to send him to Algeria promptly. Nothing in the order prevents that result, which probably would moot the controversy.

Mohammed is one of six Algerians now at Guantanamo, each of whom is trying to head off being sent to their homeland because each fears that he faces torture or death, either from the Algerian government or from a terrorist group operating in that country — a fear the U.S. government says is not well-founded.

[...]

But, since the Munaf decision was issued by the Court on June 12 two years ago, the D.C. Circuit Court has given it a wide interpretation, ruling that it bars any federal judge from “second-guessing” a decision by the Pentagon and State Departments that controls the ultimate fate of detainees who have been cleared by judges for release. In Mohammed’s case, for example, the Circuit Court relied upon only one Supreme Court precedent — Munaf – as it overturned a federal judge’s order barring his transfer to Algeria.

[...]

The Court has not taken any action on the merits of a detainee case since its Boumediene ruling.

[...]

District judges handling habeas cases from Guantanamo prisoners are left, for the time being, with only one option if they decide that a detainee is not being held legally: they can urge the government to use its best efforts to try to find a place to relocate that prisoner. That, in fact, is the way most release orders have been worded in the wake of the Circuit Court’s interpretation of the Munaf precedent.

[...]

The ruling that the Supreme Court refused to stay [Friday], pending its challenge on appeal, accepted the government’s word that it was more likely than not that a transferred detainee would not be subjected to torture, or worse. Different panels of the Circuit Court have made it clear that the government’s word on that issue is not to be subjected to rigorous testing by District judges in habeas cases.

This is probably a good place to point out that the autocratic-presidency-enamored D.C. Circuit Court, and many of its three-member panels, is an outlier of increasingly-obvious proportions on this and similar Constitutional questions. For example, just one week before the Supreme Court summarily dismissed bin Mohammed’s plea to temporarily prevent (pending appeal) his U.S. military captors from shipping him to Algeria, for fear of torture or worse, a Third Circuit Court of Appeals panel strongly repudiated the Obama DOJ’s similar effort to deport a foreign citizen living in New York to China, for fear of torture, citing the Convention against Torture:

By NINA BERNSTEIN
Published: July 15, 2010

Saying that government lawyers let their zeal for victory in a deportation case outweigh their responsibility to be fair, a federal appeals court last week ordered the United States to provide a haven for a woman facing the likelihood of torture in China.

[...]

"It is disappointing, even shocking, that the government fails to acknowledge that the evidence is not only strongly in Kang’s favor, but, indeed, compels the conclusion that she will likely be tortured," said the decision, issued by a three-judge panel of the United States Court of Appeals for the Third Circuit, which covers Delaware, New Jersey, Pennsylvania and the United States Virgin Islands.

[...]

The Third Circuit judges called the government’s position "inexplicable" and said both the board [the Board of Immigration Appeals which had overturned an immigration judge who granted Kang protection] and the government lawyers ignored overwhelming evidence.

[...]

"Instead, the government sought to characterize the facts in such a way so as to distract the court from the dire nature of Kang’s plight," Judge Marjorie O. Rendell wrote. "While our adversarial system may permit such advocacy by private parties, when the United States appears before us, it is duty-bound to ‘cut square corners’ and seek justice rather than victory. We are distressed that it failed to do so."

[Tellingly, that proceeding and ruling was in the context of immigration law, to which the D.C. Circuit has been trying to reduce the fundamental, bedrock, Constitutionally-protected right of habeas corpus (the actual judicially-mandated release it encompasses, at least) for Guantanamo detainees, via Kiyemba I, II, & III (the Chinese Uighur cases forbidding their release into the U.S.), in order to try to write our independent Judicial Branch out of an "exclusive" province of the Executive and Congress.]

A similar "zeal for victory" has been in evidence in the Guantanamo case at issue here, the instant that Judge Gladys Kessler requested the presence of a State Department representative (Daniel Fried) in her court so that she could test the strength of the government’s assurances that Algeria will not harm bin Mohammed. Her order for Fried to appear was immediately appealed to the D.C. Circuit, a D.C. Circuit panel in turn immediately acted to prevent the hearing Kessler ordered, and then proceeded to order her to issue a final judgement without recourse to State Department witnesses. All, as Lyle Denniston noted, without benefit of full briefing or oral argument:

The case of Farhi Saeed bin Mohammed, proceeding largely in secret in lower courts, poses a major test of federal judges’ power to assert control over the legal fate of Guantanamo prisoners.

At its core, the case could test how the Supreme Court reconciles two opinions on detainee rights that it issued on the same day, June 12, 2008 — Boumediene v. Bush, and Munaf v. Geren.

[...]

The government pursued an emergency appeal of that order, as it did an earlier temporary order by Kessler. Each time, the Circuit Court summarily reversed the judge — that is, it acted without full briefing and oral argument.

Meanwhile, as Lyle also recently noted, there are now three pending petitions to the D.C. Circuit for rehearing en banc (soon to be four, with the recent Al-Adahi decision overturning Kessler on another case), that challenge assorted panel decisions aggressively expanding the reach of the unilateral military power to detain (as triggered and maintained by the existence of armed conflict), including the latest brought on behalf of the Chinese Uighurs, whose new en banc petition asserts that "[T]he courts have not merely lost the judicial power. Kiyemba I and III cede it to the Executive Branch. This is inimical to an independent judiciary, which, under our tripartite system, may not constitutionally cede remedy in a case or controversy to the political branches":

The [Uighur/Kiyemba] petition for rehearing en banc in this case is one of three now pending at the Circuit Court seeking further review of important panel decisions in detainee cases. One of the others is a challenge to a panel ruling that severely restricts the power of federal judges to consider the impact of international law on Guantanamo cases (Al-Bihani v. Obama, Circuit docket 09-5051; the Circuit Court has taken no action on that case since asking for and receiving a government response). The third case is Maqaleh v. Obama (09-5265), challenging a panel ruling that prisoners now held by the U.S. military base at Bagram, outside Kabul, Afghanistan, have no habeas rights in U.S. courts. That petition, seeking panel rehearing, (discussed in this post) was filed just last week, and awaits word on whether a government response will be sought by the Court. - Lyle Denniston, scotusblog.com

In the case of Farhi Saeed bin Mohammed (specifically, his appeal to reinstate Judge Kessler’s injunction and her order for Fried’s testimony, in which the only substantive public document is this ruling), Lyle reported:

Citing to still-secret declarations by a special Administration official working on detainee release matters, Daniel Fried, the [Circuit panel] majority noted that "the government avers that it evaluated ‘all information that is in any way relevant to whether a detainee is more likely than not to be tortured in the receiving country,’…and has determined that, in the face of the allegations made by Mohammed, his transfer complies with ‘the policy that the U.S. Government will not transfer individuals to countries where it has determined that they are more likely than not to be tortured.’"

Incidentally, the order clarified for the first time — although this was commonly assumed — that Judge Kessler’s still-secret order issued June 29 had barred Mohammed’s transfer to Algeria "in light of his allegations that he would be tortured there by the Algerian government and by non-state actors." The order "dissolved" Judge Kessler’s injunction. The majority was made up of Circuit Judges Thomas B. Griffith and Brett M. Kavanaugh.

Thus backed-up and protected by the D.C. Circuit from the lower court most familiar with the facts of the case – a D.C. Circuit Court whose increasingly-radical, post-Boumediene decisions have been left undisturbed by the Supreme Court – the Obama administration appears determined to send Farhi Saeed bin Mohammed to Algeria against his wishes, under cover of darkness and with little or no media attention, as has been the usual routine – to a country which he’d fled by the mid-1990s, and after unlawfully renditioning him once from Afghanistan or Pakistan to Cuba, and then unlawfully depriving him of his liberty for eight years, after his 2002 capture in Pakistan by Pakistani authorities:

As reported in the Miami Herald by Carol Rosenberg, who was the first journalist to write about the story, bin Mohammed has been represented for four years by Boston lawyer Jerry Cohen, who said that his client "fled his homeland and lived between Britain, France and Italy as an itinerant laborer in the 1990s before going to Afghanistan months before the 9/11 attacks. He fled the US invasion to Pakistan, where he was captured and sent to Guantánamo in February 2002." Cohen added, "He’s an easy guy to like, and certainly not the worst of the worst and not even close to it."

[...]

Sadly, however, his court victory, which probably means that he has now been cleared for release on three occasions, does not guarantee that he will finally regain his freedom. Like the Uighurs and dozens of other prisoners from countries including Algeria, China, Libya, Syria, Tunisia and Uzbekistan, he cannot be repatriated because of fears that he will be tortured on his return, and must wait to see if another country can be found that is prepared to take him, while the government responsible for his long and unjust detention continues to wash its hands of all responsibility, hiding behind Republican fearmongering and refusing to allow cleared prisoners to be rehoused in the United States.

- Andy Worthington, 11/24/2009

If the Obama administration now acts on the license given to it by two members of the only lower appellate court with jurisdiction over Guantanamo [at least one of whom - Kavanaugh - pretends and asserts that international treaty law (the Geneva Conventions, as implemented by statute in the Uniform Code of Military Justice and otherwise) is not the law of the land nor binding on the U.S. government], as left intact by a majority of the Supreme Court with a cursory glance, bin Mohammed will soon be sent from his eight years of wholly-unlawful detention in Guantanamo Bay Naval Station, Cuba, to a nation he hasn’t seen for fifteen years and wishes to never see again.

With regard to the evidence that the government proffered to Judge Kessler (much of it ‘guilt by association’ inferences, and general aspersions cast on bin Mohammed’s years living in Europe as an illegal immigrant under assumed names) in the years since bin Mohammed’s habeas appeal was filed in 2005, Judge Kessler stated, in part, in her unclassified November, 2009 ruling [note especially the actions taken under color of law against Binyam Mohamed, at the behest of American authorities whose "word" the Supreme Court quickly saluted and accepted yesterday]:

Given the extensive briefing and oral argument presented by counsel during the discovery phase of this case, as well as the exhibits submitted at the Merits Hearing, it is clear that the accuracy of much of the factual material contained in those exhibits is hotly contested for a host of different reasons ranging from the fact that it contains second-level hearsay to allegations that it was obtained by torture to the fact that no statement purports to be a verbatim account of what was said.

[...]

Just as a criminal defendant need not prove his innocence, a detainee need not prove that he was acting innocently. In sum, the fact that the Petitioner [bin Mohammed] may not be able to offer air-tight answers to every factual question posed by the Government does not relieve the Government of its obligation to satisfy its burden of proof.

[...]

Petitioner contends that Binyam Mohamed’s statements–the only other evidence placing Petitioner in a training camp–cannot be relied upon, because he suffered intense and sustained physical and psychological abuse while in American custody from 2002 to 2004. Petitioner argues that while Binyam Mohamed was detained at locations in Pakistan, Morocco, and Afghanistan, he was tortured and forced to admit to a host of allegations, most of which he has since denied. [...] However, after being released from Guantanamo Bay, [Binyam Mohamed] signed a sworn declaration claiming that he never met Petitioner until they were both detained at Guantanamo Bay, thereby disavowing the statements he made at Guantanamo Bay about training with Petitioner. In that sworn declaration Binyam Mohamed stated that he was forced to make untrue statements about many detainees, including Petitioner. [...] The Government does not challenge Petitioner’s evidence of Binyam Mohamed’s abuse.

[...]

The Government’s claims of reliability are undermined by the sworn declaration of Binyam Mohamed that he was brutalized for years while in United States custody overseas at foreign facilities. He was then transferred to Guantanamo Bay, where he was further detained by the United States and where Government personnel quickly resumed their interrogation of him, although no coercive measures were used. These later interrogations yielded the information that the Government relies on to support several allegations in this case, the most significant of which is that Petitioner trained with al-Qaida.

[...]

In addition, Binyam Mohamed detailed his mistreatment in meetings with his attorney, Clive Stafford Smith, in August of 2005. Smith recorded his client’s words in a memorandum that presents Binyam Mohamed’s story chronologically, starting with his detention in Pakistan, following his rendition to Morocco for eighteen months, his transfer to the "Dark Prison"20 in Kabul, his imprisonment at Bagram, and then his arrival at Guantanamo Bay. [...] The remainder of this section presents the harrowing story that Binyam Mohamed has told about his abuse, as recounted in either Smith’s memorandum or the diary he created for his lawyer in 2005, and repeated since his release from Guantanamo Bay.

[...]

On January 21 or 22, 2004, Binyam Mohamed and two other prisoners were put on a plane with United States soldiers dressed similarly to those who had transferred him to Morocco from Pakistan. Id. at 16-17. Again they stripped him before transporting him. Binyam Mohamed recalls that one female soldier was assigned to take pictures of him. She expressed horror at the scars on his penis. Id. at 17.

The diary reports that Binyam Mohamed was taken to the "Prison of Darkness" in Kabul.

[...]

[Binyam Mohamed] told a British newspaper in 2009 that he was shackled often, once for eight days on end in a position that prevented him from standing or sitting. JE 65 at Daily Mail 5. While undergoing this treatment, it appears that Binyam Mohamed attempted to be forthright with CIA interrogators and renounce the story he had been coached to adopt. This resulted in his "being chained to the rails for a fortnight." JE 65 at Mem. at 18. He stated that he tried to tell the truth because "the CIA interrogators looked understanding."

[...]

When he tried to be compliant and provide made-up information about the pictured men, his interrogator was initially happy, but then "did [his] homework" and threatened to torture him further if he lied again. They simply wanted him to repeat what they told him to say. This included an admission of his involvement in a dirty bomb plot.

[...]

At Bagram [in July, 2004], Special Agent [censored] made him write out his narrative. Part of this story repeated the lies that he was fed by his captors while in Morocco, including the story about his involvement with the alleged "dirty bomber," Jose Padilla. Id.

In October of 2008, the Government dropped allegations that Binyam Mohamed was involved in any bomb plot.

[...]

In the criminal context, confessions or testimony procured by torture are excluded under the Due Process Clause [see: the Fifth Amendment] because such admissions would run contrary to "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions."

[...]

First, Binyam Mohamed’s lengthy and brutal experience in detention weighs heavily with the Court.

[...]

The difference, of course, is that Binyam Mohamed’s trauma lasted for two long years. During that time, he was physically and psychologically tortured. His genitals were mutilated. He was deprived of sleep and food. He was summarily transported from one foreign prison to another. Captors held him in stress positions for days at a time. He was forced to listen to piercingly loud music and the screams of other prisoners while locked in a pitch-black cell. All the while, he was forced to inculpate himself and others in various plots to imperil Americans. The Government does not dispute this evidence.

[...]

In this case, even though the identity of the individual interrogators changed (from nameless Pakistanis, to Moroccans, to Americans, and to Special Agent [censored]), there is no question that throughout his ordeal Binyam Mohamed was being held at the behest of the United States. Captors changed the sites of his detention, and frequently changed his location within each detention facility. He was shuttled from country to country, and interrogated and beaten without having access to counsel until arriving at Guantanamo Bay, after being re-interrogated by Special Agent [censored]. See JE 72 (declaration of Binyam Mohamed’s attorney, Clive Stafford Smith, stating that he did not meet with client until May of 2005)

[...]

In Bagram, he wrote that he trained with three Algerians. JE 73 at 1902. When he arrived at Guantanamo Bay and, according to his subsequent statements, met Petitioner for the first time, he then reported that one of those unnamed Algerians was in fact Petitioner. JE 27 at 2; JE 36 at 5. Given the factors discussed above, the court cannot credit this confession as voluntary. The earlier abuse had indeed "dominated the mind" of Binyam Mohamed to such a degree that his later statements to interrogators are unreliable.

[...]

Without Binyam Mohamed’s statements implicating Petitioner in training, the Government’s evidence supporting this allegation is severely weakened.

[...]

But the Government’s evidence fails to prove anything more. The Government has failed to provide reliable evidence that Petitioner received any training in weaponry or fighting, or that he engaged in actual fighting of any kind on behalf of al-Qaida and/or the Taliban.

The question then becomes whether, under Gherebi and Hamlily, the Government’s evidence meets the standard for detention.

Analyzing those two cases, the court concludes that Petitioner’s conduct does not meet the legal standard for detention.

[...]

Whether or not one believes that Petitioner was a potential danger to the security of this country, or whether or not one speculates that Petitioner would have attended a training camp and then fought with al-Qaida and/or the Taliban if the opportunity presented itself, is not relevant. [...] In short, Petitioner may well have started down the path toward becoming a member or substantial supporter of al-Qaida and/or the Taliban, but on this record he had not yet achieved that status.

[Note: Gladys Kessler to date has ruled on the merits of five Guantanamo habeas corpus petitions. She granted release in three of the appeals, and denied it in two. She also had the petition of Mohammad Jawad, the juvenile whose case was thrown out of the military commissions by a military judge (after the prosecutor had resigned in protest), following which the governnment finally effectively conceded Jawad's habeas corpus appeal in federal court, and agreed to release him just before Kessler ruled. Of the three detainees Kessler determined to have been unlawfully detained, only one has actually been released from Guantanamo (her first ruling, in favor of Ali Bin Ali Aleh/Ahmed of Yemen, last May). A second ordered detainee release last August was overturned this month by Judges Randolph and Henderson and Kavanaugh (again) of the D.C. Circuit (based on an argument about mathematical probabilities in assessing evidence, and with reference to the supposedly voluntary nature of Senate-ratified international treaty law as it pertains to U.S. government actors). Her third ordered release, the case at issue here, in favor of bin Mohammed, was not appealed by the government, which is now fighting in the courts to send bin Mohammed to a nation where he fears for his life.]

To paraphrase the Third Circuit panel, it is much more than disappointing, it is shocking, that the federal appellate courts overseeing Guantanamo detention cases, without full briefing or argument, are acting to prevent a district judge from testing the Obama administration’s claims that bin Mohammed’s fears that he will be tortured in Algeria are unfounded, rather than ordering that he stay in Guantanamo until an appeal of his pending rendition to Algeria can be heard on the merits.

by powwow

“He Was Tortured, But He Can’t Sue”: David Cole’s utterly-damning account of our Judicial Branch’s denial of justice for Canadian Maher Arar

11:32 am in Uncategorized by powwow

An invaluable summary and incisive account of the Maher Arar case was published Tuesday by Arar Attorney David Cole on the blog of the New York Review of Books, in response to the United States Supreme Court’s refusal to even hear the Arar appeal. Arar’s appeal was an ultimately-unsuccessful six-year-long effort to simply be heard in an American courtroom on the merits of his rendition-to-torture allegations against high public officials in our nation’s Executive Branch of government.

The Supreme Court’s refusal to even hear Arar’s case may have resulted from Justice Sotomayor’s recusal from the debate and vote on hearing his appeal – a recusal apparently made just because Sotomayor, while sitting on the Second Circuit Court of Appeals (whose decision Arar was appealing to the Supreme Court), publicly did no more than to participate in the court’s en banc Arar appeal oral argument (having left the court months before the 2nd Circuit’s November, 2009 Arar decision was rendered). [The December, 2008 en banc Arar oral argument in the Second Circuit, which lasted for more than two hours, in which Sotomayor participated by video feed, may be viewed in its entirety here.]

The short version, from Cole’s account, of how the incumbent American President acts to "faithfully execute the Office of President" and "to the best of [his] ability, preserve, protect, and defend the Constitution" – under the Presidential oath of office Article II, Section One, Clause Eight of our Constitution demands:

In President Obama’s May 2009 speech on national security and American values, he opposed a commission to investigate torture by arguing that there were proceedings in the courts that could provide accountability. Yet in the Arar case—as in every other civil case that has sought accountability for torture—the Obama administration argued that the courts were not an appropriate forum. To the Obama administration, defending government officials from suit, regardless of the gravity of the allegations, is evidently more important than holding individuals responsible for complicity in torture.

As to the torture claims of Syrian-born Canadian resident and citizen, Maher Arar, Cole elaborates:

[...] When they finally permitted him to see a lawyer, on a Saturday ten days into his detention, the government hastily scheduled an extraordinary hearing for the next night—Sunday evening—and only "notified" Arar’s lawyer by leaving a voicemail on her office answering machine that Sunday afternoon. They then falsely told Arar that the lawyer had declined to participate, and questioned him for six hours, until 3 a.m. Monday.

When Arar’s lawyer retrieved the voicemail message later that Monday morning, she immediately called the Immigration and Naturalization Service. They told her falsely that Arar was being moved to New Jersey, and that she could contact him there the next day. In fact, he remained in New York until late that night, when he was put on a federally chartered jet and spirited out of the country. US officials never informed Arar’s lawyer that he had been deported, much less that he had been delivered to Syrian security forces.

Arar was beaten and tortured while Syrian officials asked him questions virtually identical to those US officials had asked him in New York. He was locked up for a year without charges and in complete isolation, most of the time in a cell the size of a grave. After a year, Syria released him, finding no evidence that he had done anything wrong.

[...]

In addition, the United States did not dispute that if, as was his legal right, Arar had been able to get his claim before a court while he was being detained in the United States—before he was sent to Syria—the federal courts would have entertained his case and could have stopped his rendition. Congress has expressly authorized the courts to review immigration decisions and to bar removal of foreign nationals to any country where they face a risk of torture. Knowing that, US officials made sure Arar could not get to court—denying his initial requests for a lawyer, lying to him and his lawyer, and then flying him out of the country in the dead of night before he or his lawyer could file anything. Arar therefore sought the only remedy left—damages for his injuries. The Second Circuit never explained why Arar’s case, which indisputably could have been adjudicated had he been able to seek review before he was removed, suddenly became too "sensitive" once Arar sought damages for injuries incurred as a result of that removal.

Absent enforcement, "the law" is a cruel joke…

Bush administration officials sent Arar to be tortured, and Bush administration lawyers initially sought to have his damages suit dismissed. But nothing changed when President Obama took office. The Obama administration [through its Deputy Solicitor General] aggressively defended the Second Circuit’s decision to throw Arar’s case out of court. It opened its brief to the Supreme Court with a paragraph reiterating that torture is never permissible, but then went on to argue at length that federal officials accused of torture should not be held accountable.

- Attorney David Cole, June 15, 2010

Be sure to read the whole thing.

Yet even while powerful abusers on the public payroll egregiously skate from the consequences of their actions, the powerless among us continue to be persecuted by government actors, on multiple fronts.

ACORN Persecution

From the latest in a series of at least four independent investigations undertaken and concluded on the same subject since the middle of last year, none of which have unearthed any wrongdoing:

When a duo of right-wing provocateurs posing as a pimp and prostitute released selectively-edited videos trying to impugn the community activist group ACORN, both Democrats and Republicans condemned the organization. Congress then voted to cut off federal funding for the group (a decision that was later ruled unconstitutional [as a Bill of Attainder]). Following negative press and Congress’ vote, ACORN effectively disbanded Apr. 1 and reorganized under new names.

But a just-issued report by the Government Accountability Office that reviewed ACORN’s federal funding at the behest of Congress found little grist for the mill for politicians or right-wing bloggers looking to bash the now-defunct advocacy group for the poor.

The 38-page report surveyed over 31 federal agencies, probing how ACORN used federal funds and whether adequate controls on spending existed.

The report found no evidence of fraud, lax oversight or misuse of federal funds.

By at least March 12th of this year, after Federal District Judge Nina Gershon had issued her permanent injunction striking down the unConstitutional Congressional ban on consideration of federal funding applications from ACORN – a ruling now under appeal by the Obama administration in the Second Circuit – that was already quite clear:

JOHN ATLAS: [...] Prior to this [Gershon permanent injunction] decision, there was a thing called the Harshbarger—Scott Harshbarger report. This was an independent study done by the former attorney general of Massachusetts, who went around and interviewed every office. By the way, I did the same thing. I interviewed the offices to find out what happened when they appeared, when those right-wing activists appeared, at the ACORN offices and they were—and getting this advice from ACORN staff about how to avoid the law and stuff about, you know, underage prostitution. Well, the Harshbarger report came to two conclusions: one, ACORN did nothing wrong, and two, the tapes were misleading, highly edited and did not portray what really happened there.

The second time that happened was when the Congressional Research Service did the same kind of analysis, did a research into what happened. They came to the same conclusion: ACORN did nothing wrong, the tapes were misleading and edited. Recently, the DA, Joe Hynes, did an investigation. He’s been investigating ACORN since September to find out what happened when these right-wing activists came in dressed up as—the fake pimp and prostitute came into ACORN offices. He also came to the same conclusion: ACORN did nothing wrong, and the tapes were misleading and highly edited and were unreliable.

Nevertheless, the desired ends – huge damage to the reputation of and even the dismantling of ACORN – were obviously achieved by the ACORN demonizers in the Senate and House, led by ringleaders Mike Johanns of Nebraska, and Darryl Issa of California, never mind the after-the-fact determination that they, and those in Congress who eagerly joined in the bloodsport with them, clearly violated their oaths of office in targeting an organization now repeatedly and independently deemed to have violated no laws or even ethical boundaries. All that while years-long, clear evidence of government-sponsored torture and other human rights abuses, and even suspicious deaths of Geneva Convention-"protected" wartime detainees in American military custody go uninvestigated (not to mention unpunished) by any independent authority.

Likewise, relatively-powerless whistleblowers – regularly given lip service, and little else, by the Congress they seek to inform, even as their ongoing persecution and mistreatment is used as an excuse to further empower media empires in their name (by way of law enforcement testimony "shield" laws for the employees of powerful, but self-serving, corporations, rather than for actual whistleblowers) – are relentlessly pursued and threatened, as the wall of secrecy shielding our government from the people grows ever higher, with the blessing of Congressional incumbents. ["In an interview with The Daily Beast on Monday, [Adrian] Lamo said that he had been interviewed for nearly 12 hours this weekend by investigators from the Defense Department, the State Department, and the FBI, as formal criminal charges are being prepared for [alleged Wikileaks source Bradley] Manning." – Philip Shenon, 6/15/10]

As is the case with the Second Circuit’s en banc Arar decision, there’s a clear pattern emerging of federal judges, particularly at the appellate level, rendering politically-fearful or politically-driven decisions, tending usually to serve and enhance Presidential power at the expense of the other branches, individual liberty, and self-government, even in the face of extremely-grave alleged abuses of federal power. Such decisions, in which "justice" for the aggrieved is but an afterthought at best, avoid fulfilling the role of the Judicial Branch by pretending that the "political" branches (their minimizing and misleading term for our self-governing Legislative and hierarchical Executive Branches) must be allowed, on their own, to define and punish – or not – any lawless conduct in which public servants in those branches engage, usually in secret and in the name of territorial self-defense or "security."

As with Members of Congress who disdain their own Legislative Branch’s central role in our government, willfully violate their oaths of office with impunity unless and until someone (that is, the Supreme Court) forces them to revert to obvious Constitutional bounds, and can’t be bothered to do the work of legislative self-government, even as they indulge in the spiteful, dishonest, and destructive demagoguery of Party politics, members of our independent federal judiciary who are afraid of displeasing the powerful, or of "getting a reputation" as someone who rocks the status quo boat, are the ones who’ve earned the label "political hack" by their actions, and failures to act, in public office.

The independent-judiciary-hostile Military Commissions Act of 2006

There’s a crucial pair of pending decisions from another set of appellate judges – this set operating within the Executive Branch – that I want to highlight here, because they pertain to two appeals, like the Arar case, in which judges are being called upon to defend the Constitution from politically-motivated attacks. If the pending decisions follow the recent pattern of politically-motivated unsound rulings in Judicial Branch courts like the Court of Appeals for the D.C. Circuit, it will be a travesty of the highest order, given both the high stakes involved, and the overwhelmingly-one-sided nature of the precedent and law favoring the two politically-unpopular defendants, who, with the help of American civilian and military lawyers, are challenging the military chain of command, the President, and the Congress, head-on, in defense of Constitutional government and everyone’s right to due process and equal justice under the law when prosecuted by American government authorities in federal court.

At issue: Guantanamo Bay prosecutions under the 2006 Military Commissions Act – a law that was quickly written by the Executive Branch to exempt itself from the law unambiguously enunciated by the Supreme Court in June, 2006 in Hamdan, and then hastily rubberstamped by a Republican-controlled Congress in late September 2006, with the help of Democratic Party leadership and its caucus, and signed into law in October, 2006 by President Bush, the month before the Democrats regained control of Congress. [Most of that law is still operative, despite the 2008 strike-down by the Supreme Court in Boumediene of its habeas-voiding provisions, after a Democratic-controlled Congress and President Obama enacted relatively-minor revisions to it, following minimal hearings and almost no debate, via the Military Commissions Act of 2009.]

A total of three prosecutions under the 2006 MCA have come to a conclusion in the three and a half years since its passage. One was a plea bargain – which lead to the release to Australia of David Hicks. A second was an undefended 2008 prosecution and conviction, where the military judge wouldn’t let the defendant, Ali Hamza al-Bahlul, represent himself, and the defendant refused the services of his assigned military defense counsel, David Frakt (who honored the defendant’s wishes, and courageously resisted the efforts of the judge to force him to defend his client). That conviction resulted in a life sentence for Al-Bahlul. The third was also a 2008 conviction, of Salim Hamdan, who received a sentence which, with years of time detained credited, led to a further six months of imprisonment, and then release to his home in Yemen before Obama took office [even though Hamdan was determined by a military judge, acting as a vanishingly-rare Article 5-compliant tribunal in 2007, to be an enemy belligerent and therefore detainable 'for the duration' of the armed conflict in question - a status which all the ongoing Boumediene-enabled habeas corpus appeals in federal district court in Washington are aimed at proving or disproving for remaining Guantanamo detainees].

Under the 2006 MCA, both convictions were automatically appealed, and lawyers are now representing Al-Bahlul and Hamdan in front of the Court of Military Commission Review (CMCR), itself created by the MCA. Among the CMCR’s judges are Rhode Island (state) Supreme Court Chief Justice Frank J. Williams (serving as CMCR Chief Judge), a former Secretary of Transportation, a former Congressman, and military officers (colonels and captains) from the Army, Air Force, Navy and Marine Corps. Despite a small caseload, the court is divided into three-member panels, which heard oral arguments in these two appeals on January 26, 2010. The Hamdan appeal oral argument is available for listening here. On-line briefs and rulings for Hamdan’s CMCR appeal are available here. The Al-Bahlul oral argument is not available on-line. The briefs and rulings in the Al-Bahlul appeal are available here.

The only reporting that I’ve seen about this important MCA-challenging January oral argument, held in Washington, D.C., aside from that of the invaluable Andy Worthington, is from Jess Bravin of the Wall Street Journal.

One of the amicus briefs filed in the Al-Bahlul appeal, on October 15, 2009, is from Air Force Colonel Peter Masciola, Chief Defense Counsel (a position created by the 2006 MCA), and Adam Thurschwell, General Counsel, of the Office of Chief Defense Counsel for the Office of Military Commissions, Department of Defense, in which they presented these issues:

1. Whether military commissions convened under authority of the Military Commissions Act of 2006 constitute "regularly constituted courts" within the meaning of Common Article 3 of the Geneva Conventions. [They argue the commissions do not constitute such courts.]

2. Whether the failure of military commissions convened under the Military Commissions Act of 2006 to constitute "regularly constituted courts" renders the Act unconstitutional on its face. [They argue that said failure does render the 2006 MCA unconstitutional on its face.]

Among many other related issues – including especially the legitimacy, or lack thereof, of "material support for terrorism" as a supposed war crime – those are the sort of foundational, structural flaws with the military commissions, and the Congresssional/Presidential Act creating them, that three CMCR judges must issue decisions about in the near future. Those rulings have been pending since January, and I believe the panel hearing the appeals (or at least one of the appeals) is composed of Chief Judge Frank Williams, Army Colonel David L. Conn, JA, and Air Force Colonel Cheryl H. Thompson. The military and civilian attorneys for other detainees not yet convicted by a military commission (including some of the "9/11 Five" and others of the small minority of Guantanamo inmates charged under the MCA), have filed similarly-argued mandamus writs, apparently in vain, in the black hole where the conscience and integrity of the D.C. Circuit Court of Appeals ought to be, starting last fall, as I noted here.

I highly recommend listening to the oral argument in the Hamdan appeal, and reading at least the defense merit briefs in the Hamdan (a comprehensive compilation of the many facets of the law that Congress and the President have willfully ignored), and Al-Bahlul appeals. They touch on many different aspects of the ongoing perversion of our Constitutional design, which has been too-slowly tackled and rolled back in piecemeal and tangential fashion by the Supreme Court over the last half-decade or so.

The government position and rebuttal in the CMCR oral argument in Hamdan is disgracefully weak, and it’s clear that the government/military lawyer knew it – he had to resort essentially to implicit political arguments to make any case at all. Given the deplorable state of play in the compromised appellate court of the federal D.C. Circuit ["But, in a variety of rulings since then, the D.C. Circuit Court has interpreted the Boumediene decision in ways that significantly narrow its potential as a legal remedy for Guantanamo imprisonment. The practical effect has been to diminish sharply the judicial oversight of the Executive Branch’s handling of detention policy. That has been a basic goal of both the Bush Administration and Obama Administration in cases before all federal courts." - Lyle Denniston, 6/3/2010], where any appeal of the CMCR rulings will finally land, it seems to me that a CMCR ruling upholding these convictions would be a similarly-inexcusable mockery of domestic and international law and longstanding precedent in the American system of justice, and a direct threat, coming from a Congressionally-sanctioned, Executive Branch-operated court, to the concept and jurisdiction of an independent judiciary in this country.

by powwow

District Judge Robertson’s Slahi Guantanamo habeas ruling exposes the presidential power-aggrandizing agenda behind the Al Bihani habeas decision of D.C. Circuit Judges Brown & Kavanaugh

3:21 pm in Uncategorized by powwow

Justice atop the Old Bailey in London; photo taken by flickr member John LinwoodIn a clear and thoughtful decision issued March 22, 2010, that was declassified with redactions this Friday, April 9, Federal District Judge James Robertson granted the habeas corpus appeal of Guantanamo detainee Mohamedou Ould Slahi (referred to in the decision as Mohammedou Ould Salahi), a Mauritanian who has been imprisoned at Guantanamo Bay Naval Base since 2002.

But not just "imprisoned," as Andy Worthington points out, helpfully filling in some of the censored and undetailed portions of the record, beside a rare photograph of Slahi:

Noticeably, however, Slahi was subjected to several years of torture, which began soon after he was taken in by the Mauritanian authorities on November 20, 2001, at the request of the Bush administration. “My country turned me over, shortcutting all kinds of due process of law, like a candy bar to the United States,” he said in his Combatant Status Review Tribunal at Guantánamo in 2004.

After he was seized, he was transferred by the US to Jordan — one of at least 15 prisoners rendered to Jordan by the CIA between 2001 and 2004 — where he was held for eight months, and where, he said, what happened to him was “beyond description” and he was tortured “maybe twice a week, a couple times, sometimes more.” He was then transferred to the US prison at Bagram in Afghanistan for two weeks, and arrived in Guantánamo on August 4, 2002.

As the “highest-value detainee” at Guantánamo — in the days before Khalid Sheikh Mohammed and 13 other “high-value detainees” were flown in from secret CIA prisons in September 2006 — Slahi was again subjected to torture, which included prolonged isolation, prolonged sleep deprivation, beatings, death threats, and threats that his mother would be brought to Guantánamo and gang-raped. This program, which was implemented in May 2003, and augmented with further “enhanced interrogation techniques” authorized by defense secretary Donald Rumsfeld, culminated, in August 2003, in an incident when Slahi was taken out on a boat, wearing isolation goggles, while agents whispered, within earshot, that he was “about to be executed and made to disappear.” As Der Spiegel explained in an article in 2008, “He was so terrified that he urinated in his pants.”

After this, as Slahi himself described it (in a letter to his lawyers dated November 9, 2006), “I yes-sed every accusation my interrogators made. I even wrote the infamous confession about me was planning to hit the CN Tower in Toronto based on SSG [redacted] advise. I just wanted to get the monkeys off my back.”

However, his treatment was so severe that, in May 2004, Lt. Col. Stuart Couch of the Marine Corps, who had been assigned his case as a prosecutor the year before, resigned rather than pursuing the case. In a meeting with the chief prosecutor, Army Col. Bob Swann, Lt. Col. Couch “told Col. Swann that in addition to legal reasons, he was ‘morally opposed’ to the interrogation techniques ‘and for that reason alone refused to participate in [the Slahi] prosecution in any manner.’”

In the process of ordering Slahi’s release from American military custody, D.C. District Judge Robertson exposed the twisted logic and misinformed reasoning of a key, but clearly erroneous as to the laws of war, political agenda-driven January 5, 2010 holding of the majority on a three-judge panel of the D.C. Circuit Court of Appeals, in the Al Bihani Guantanamo habeas corpus appeal. [That's the appellate decision where a panel majority of Janice Rogers Brown and Brett M. Kavanaugh brazenly asserted that the presidential war powers authorized and invoked by Congress, via the 2001 Authorization for Use of Military Force, are not limited or governed by the international laws of war, and that went so far as to claim that "the international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts. . .therefore while the international laws of war are helpful to courts, [they] lack controlling legal force."]

Judge Robertson deftly exposed the mendacity of the Al Bihani decision’s reasoning even as he himself was forced to adher to that flawed higher court precedent – which now governs unless and until overturned all habeas corpus appeals brought by Guantanamo prisoners, who may only be heard in the district court in Washington, D.C. that’s governed by the D.C. Circuit Court of Appeals and thus by the specious reasoning of such unsound and unjust opinions as that of the Al Bihani panel majority of Brown and Kavanaugh. Their decision to uphold as lawful the detention of Al Bihani (a citizen of Yemen, likewise detained since 2002 at Guantanamo Bay) was concurred in as to the result, but challenged as to its dismissive interpretation and understanding of the law of war, by Senior Circuit Judge Stephen F. Williams.

Robertson’s carefully-balanced decision, while acknowledging that Slahi himself admits to having been a sworn member of Al Qaeda in the early 1990s, found – more than six months after the first merits hearing on Slahi’s appeal, which itself took place three years after Slahi first officially challenged the basis of his detention in federal court – that the Executive Branch failed to prove that it was simply more likely than not that Slahi is and was legally detained by the United States government, resulting in an order for the release of Slahi, which the Obama administration immediately moved to appeal in the D.C. Circuit.

Some of the important logic and reasoning of Robertson’s decision:

If the government has any authority to detain Salahi without charging him with a crime, its source is the Authorization for Use of Military Force, Pub. L. 107-04, 115 Stat. 224 (2001).

"The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

Authorization for Use of Military Force, Pub. L. 107-04, 115 Stat. 224 (2001).

[...]

As the following discussion will make clear, Salahi may very well have been an al-Qaida sympathizer, and the evidence does show that he provided some support to al-Qaida, or to people he knew to be al-Qaida. Such support was sporadic, however, and, at the time of his capture, non-existent. In any event, what the standard approved in Al-Bihani actually covers is "those who purposefully and materially supported such forces in hostilities against U.S. Coalition partners." 530 F.3d at 872 (emphasis added). The evidence in this record cannot possibly be stretched far enough to fit that test. [Footnote 4]

Footnote 4: The Al-Bihani panel extracted the test from the 2006 and 2009 Military Commission Acts, both of which made such "purposeful[] and material[] support" triable offenses. The panel concluded that "the government’s detention authority logically covers a category of persons no narrower than is covered by its military commission authority." 530 F.3d at 872. Where, as here, the government clearly has no triable criminal case of "purposeful and material support" against Salahi, the logic of that conclusion escapes me. [emphasis added]

[...]

The test now applied by most judges of this court for determining who is or was "part of" al-Qaida was first articulated by Judge Bates: "whether the individual functions or participates within or under the command structure of the organization – i.e., whether he receives and executes orders or directions." Hamlily v. Obama, 616 F. Supp. 2d 63, 75 (D.D.C. 2009); see Awad v. Obama, 646 F. Supp. 2d 20, 23 (D.D.C. 2009) (appeal pending).

[...]

The question of when a detainee must have been a "part of" al-Qaida to be detainable is at the center of this case, because it is clear that Salahi was at one point a sworn al-Qaida member.

[...]

It is undisputed that Salahi swore bayat and was a member of al-Qaida in 1990, but the government had to show that he was still (or again) within its command structure when he was captured [arrested] on November [censored] 2001. Salahi’s admission that he once was part of al-Qaida but that he severed his ties after 1992 raises burden-of-proof questions: May the burden lawfully be shifted to Salahi to prove his dis-association? If so, at what point does the burden shift?

[...]

In Al-Bihani, however, the Court of Appeals clearly indicates that there is nothing unconstitutional about shifting the burden to a detainee to rebut a credible government showing "with more persuasive evidence," 590 F.3d at 878, citing Hamdi v. Rumsfeld, 542 U.S. 507, 533-34 (2004). [...]

If that is the rule, one might reasonably ask, how can Guantanamo detainees – locked up for years on a remote island, cut off from the world, without resources, with only such access to intelligence sources and witnesses as the government deigns to give them – how can such people [most of whom speak no English] possibly carry the burden of rebuttal, even against weak government cases? The answer, unfortunately for detainee petitioners, is that they are indeed at a considerable disadvantage, and that successful rebuttals of credible government cases will be rare events. The Court of Appeals [panel] has acknowledged this imbalance and approved it:

"[P]lacing a lower burden on the government defending a wartime detention – where national security interests are at their zenith and the rights of the alien petitioner at their nadir – is . . . permissible." Id. [emphasis added]

The D.C. Circuit panel’s endorsement of that extreme imbalance of power, with its built-in government advantage as to claims about the alleged actions of the detainees pre-detention, essentially accepts and approves of the profoundly-unjust relationship between the Executive Branch and its foreign prisoners locked up in Cuba under American military (and, apparently, at-will CIA) control, since Guantanamo was first purposely turned into an American military prison outside the law.

Those foreign prisoners of our military and CIA are human beings who our Judicial Branch of government – the intermittent legal niceties and reiterations of fundamental principles of law in the words of their long-awaited opinions aside (see Boumediene), in tandem with our Legislative Branch of government – has mostly tolerated, and mostly continues to tolerate being:

1. Imprisoned by our government for years without indictment, charge or trial thousands of miles from any active battlefield, intentionally out of easy reach of our independent Judicial Branch of government, and of the independent, unsupervised reach of our Legislative Branch of government and the media, in conditions that many Americans would be outraged to see animals subjected to.

2. Deprived of their liberty for years by our government without benefit of Prisoner of War status or protections, because denied an initial battlefield (or subsequent) Geneva Convention Article 5-compliant competent-tribunal adjudication of their assumed status – imposed essentially by default/decree – as unlawful, non-POW enemy combatant prisoners of the American president:

Congress was clearly aware of these treaty obligations under Article 5 when it debated and enacted the [2006] Military Commissions Act. [...]

The CSRT [Combatant Status Review Tribunal] did not address [Hamdan's default] entitlement to Prisoner of War status, cite or discuss the Geneva Conventions or Article 5, or address the lawfulness of the accused’s participation in hostilities. [...] As a consequence, this Commission cannot accept the 2004 CSRT determination that the accused is properly detained as an "enemy combatant" in satisfaction of the required determination regarding his entitlement to Prisoner of War Status. - Military Judge, Captain, JAGC, US Navy, Keith Allred, 12/17/2007

http://ccrjustice.org/files/Hamdan_Article5Decision_12_07.pdf

[And:]

The determination of whether an individual captured on the battlefield is a “lawful” or “unlawful” enemy combatant carries with it significant legal consequences (both international and domestic) relating to the treatment owed that individual upon capture and ultimate criminal liability for participating in war-related activities associated with the armed conflict. The Third Geneva Convention Relative to the Treatment of Prisoners of War (GPW III) — signed in 1949 and entered into force in 1950 following battlefield atrocities occurring during World War II — sought to carefully define “lawful combatant” for all signatory nations.

[...]

This critical determination of “lawful” or “unlawful” combatant status is far more than simply a matter of semantics. [...] However, under the well recognized body of customary international law relating to armed conflict, and specific provisions of GPW III [Third Geneva Convention relative to POWs], lawful combatants enjoy “combatant immunity”5 for their pre-capture acts of warfare, including the targeting, wounding, or killing of other human beings, provided those actions were performed in the context of ongoing hostilities against lawful military targets, and were not in violation of the law of war.

[...]

Lawful enemy combatants enjoy all the privileges afforded soldiers under the law of war, including combatant immunity and the protections of the Geneva Conventions if wounded or sick, and while being held as prisoners of war (POWs).6 Additionally, lawful enemy combatants facing judicial proceedings for any of their actions in warfare that violate the law of war, or for post-capture offenses committed while they are POWs, are entitled to be tried by the same courts, and in accordance with the same procedures, that the detaining power would utilize to try members of its own armed forces (i.e., by court-martial for lawful enemy combatants held by the United States). See Arts. 84, 87 and 102, GPW III.

Indeed, GPW III codified many existing principles of customary international law and added numerous additional provisions, all aimed at protecting lawful combatants from being punished for their hostile actions prior to capture;7 ensuring that POWs were treated and cared for humanely upon capture; and seeking to guarantee the general welfare and well-being of POWs during the entire period they remained in captivity. See R.C. Hingorani, Prisoners of War 9 (1982).

[...]

Unlawful combatants, on the other hand, are not entitled to “combatant immunity” nor any of the protections generally afforded lawful combatants who become POWs. Unlawful combatants remain civilians and may properly be captured, detained by opposing military forces, and treated as criminals under the domestic law of the capturing nation for any and all unlawful combat actions. Lindh, 212 F. Supp. 2d at 554 (citing Ex parte Quirin, 317 U.S. at 30-31); see Army Op. Law Handbook 17. 9 (1982).

[...]

The burden of raising the special defense that one is entitled to lawful combatant immunity rests upon the individual asserting the claim. Lindh, 212 F. Supp. 2d at 557-58. Once raised before a military commission, the burden then shifts to the prosecution to prove beyond a reasonable doubt that the defense does not exist. R.M.C. 916(b).

[...]

No serious legal authority would contest the notion that one of the most indispensable and important judicial guarantees among civilized nations honoring a tradition of due process and fundamental fairness is the right to adequate notice and an opportunity to be heard in regard to allegations which might result in criminal sanctions.24 The M.C.A. did not exist until October 2006. Mr. Khadr could not have known at the time of his C.S.R.T. in 2004 that a determination of “enemy combatant” status pursuant to declarations contained in the 2002 White House memorandum, or definitions contained in the 2004 Wolfowitz memorandum, could dispositively qualify him two years after the fact for potential criminal liability before a military commission as an “unlawful enemy combatant.”

[...]

The declared purpose of the C.S.R.T. process used to review the status of hundreds of foreign national detainees captured in Iraq and Afghanistan and currently held under Defense Department control at Guantanamo Bay Naval Base, Cuba — including Mr. Khadr — was solely to afford detainees “the opportunity to contest designation as an enemy combatant.” Wolfowitz memorandum at 1. The Wolfowitz memorandum never discusses addressing the issue of “lawful” or “unlawful” enemy combatant status; nor does the memorandum from the Secretary of the Navy implementing the C.S.R.T. process.25 As far as we can discern, the C.S.R.T.s were never tasked with making that determination. Instead, they conducted non-adversarial proceedings aimed at deciding, by a preponderance of the evidence, whether each detainee met the criteria for designation as an “enemy combatant” [eligible/required to be treated as a POW until proven otherwise, under the Geneva Conventions] under the definition in the Wolfowitz memorandum26 to permit continued detention at Guantanamo Bay.

- Appellate Military Deputy Chief Judge Rolph of the United States Court of Military Commission Review, 9/24/2007, joined by Judges Francis and Holden, in their first-ever decision

http://www.scotusblog.com/movabletype/archives/CMCR%20ruling%209-24-07.pdf

3. Repeatedly coerced into testifying against themselves and others, by the application of secretly-exercised, publicly-uninvestigated, physically- and mentally-abusive treatment employed by members of the CIA, JSOC, for-profit private government contractors, and others, with the knowledge of the military chain of command that controls access to and all activity at the naval base.

4. Allowed, as uncharged, non-POW, abused, and powerless foreign prisoners, to continue to languish in our military prison camp for more months and more years while the Executive and Judicial Branches play leisurely legal tic-tac-toe with their liberty and their lives in habeas cases argued far away from their presence. Thereby implicitly endorsing the indefinite detention of these foreign prisoners as ‘no big deal’ and thus not a situation that requires the slightest significant rearrangement of judicial time or resources to force these hearings to a prompt conclusion, as the highest judicial priority.

All that, even as yet another independent federal judge reveals, as plainly as can be, while Congress continues studiously looking the other with a collective yawn, that we had (and still have, in certain key respects) a lawless military prison system at Guantanamo, which "extensive[ly] and severe[ly] mistreated" another prisoner:

There is ample evidence in this record that Salahi was subjected to extensive and severe mistreatment at Guantanamo from mid-June 2003 to September 2003, Tr. Exh. C, D, I, P, BB -HH, JJ, LL, 00, PP, QQ, RR, SS, BBB; AFR Exh. 93; Hr. Tr. 411-436.

Which is, among other things, a completely-predictable result of a rules-bound process trying to effectively or timely contend with lawless actions taken by men and women without integrity in high public office who acted with impunity, allegedly in the name of our "safety," and in disregard of law and human rights, "because they could" – and who have thus far escaped any negative personal consequences for their actions, while leaving it to the rest of us to endure and remedy (or not) the destructive aftermath of their unconscionable abuse of power.

The government had to adduce evidencewhich is different from intelligence – showing that it was more likely than not that Salahi was "part of" al-Qaida. To do so, it had to show that the support Salahi undoubtedly did provide from time to time was provided within al-Qaida’s command structure. The government has not done so.

[..]

The government’s problem is that its proof that Salahi gave material support to terrorists is so attenuated, or so tainted by coercion and mistreatment, or so classified, that it cannot support a successful criminal prosecution. Nevertheless, the government wants to hold Salahi indefinitely, because of its concern that he might renew his oath to al-Qaida and become a terrorist upon his release. [...] But a habeas court may not permit a man to be held indefinitely upon suspicion, or because of the government’s prediction that he may do unlawful acts in the future – any more than a habeas court may rely upon its prediction that a man will not be dangerous in the future and order his release if he was lawfully detained in the first place.Federal District Judge James Robertson, 3/22/2010 (publicly released 4/9/2010)