The Kentucky Crying Turtle, Mitch McConnell by DonkeyHotey

There are a lot of problems without the United States military tribunal system. Not the least of which is that we have set a separate track for some prosecutions when it comes to terrorism and terrorism related crimes. This leads to a confusion of effort but also risks the expansion of our gulag in Cuba.

Take the example of two men who were arrested in Kentucky. Waad Alwan and Mohanad Hammadi, two Iraqi men arrested in May on charges of trying to send Stinger missiles and other weapons to Al Qaeda related insurgents in Iraq. Both men were part of the refugee program that has allowed 56,000 Iraqi’s into the United States.

Mr. Alwan was, apparently, an insurgent himself who came to the U.S. with the intention of getting out of Iraq, where he was wanted, and gaining a U.S. passport which would allow him a much greater freedom of travel world wide.

He had been under investigation by the FBI since sometime in 2009. The details are sketchy but he had been working with an FBI informant who gave him weapons to ship to Iraq with the express intent of attacking Americans there.

All of this is pretty standard for anti-terror cases but it is when we get people like Sen. Mitch “Box-Turtle” McConnell involved that we see the perils of our “two track” justice system in regards to terrorism. The Senate Minority Leader is loudly saying that he wants the two men transferred from Federal custody to Guantanamo Bay.

Here is part of what he said, from the Courier-Journal article:

In a Senate floor speech, McConnell said he wanted to “get these men out of Kentucky.”

“Send them to Guantanamo where they belong,” the Kentucky Republican said. “Get these terrorists out of the civilian (court) system — and out of our backyards. And give them the justice they deserve.”

There are a lot of problems that that single sentence. First off it is hard to understand how a court system that is designed to let evidence that would never see the light of day in Article III courts be admissible is going to be any kind justice. (continued…)
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Courthouse at Guantanamo by NewsHour, on Flickr

We all know how the U.S. justice system works. You’re arrested, then tried, found guilty for a crime, then the court looks around for a different crime they are going to sentence you for. What? That is not how you think it is done? Well if you are a Guantanamo Bay detainee like Al Bahlul that is exactly what is going on today.

The Center for Constitutional Rights is highlighting this small bit of continuing legal (extra-legal?) chicanery going on in our Military Commissions Review in Cuba today.

Mr. Bahlul was part of the original prisoners brought to Guantanamo Bay nearly a decade ago. After serving several years without charge or conviction, he finally got a trial. He was charged and convicted on conspiracy, solicitation and providing material support for terrorism.

In the process of his appeals there has been a new administration, a Supreme Court decision, a reshuffling of the Court of Military Commissions Review (the appeals court in the Military Commissions system) and a decision that the appeal be held en banc (meaning that the whole appellate court heard the appeal). At this point the government has all but agreed that the charges that they originally convicted him on were not established at law-of-war offenses either under international law or U.S. law at the time they were committed.

This is an important fact as the U.S. Constitution bars ex post facto convictions Article One, Section 9 prevents the Congress from passing ex post facto laws. What this means is that you can not be held accountable as a matter of law for a crime that was not as crime at the time you committed it.
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Pic courtesy of Hershell Hershey, via Flickr

On Friday I got an e-mail from the Center for Constitutional Rights explaining that their plan to provide the legal justification for a preliminary criminal investigation of George W. Bush to the General Prosecutor of the Canton of Geneva with regards to his actions in the torture of so-called “enemy combatants”. The plan had to be canceled because the former President had canceled his trip to Geneva. It lead to this post .

By Swiss law a person accused of torture under the International Conventions Against Torture (ICAT) has to be present in Swiss territory for the government to act. With the cancellation of the trip, the CCR and the International Federation for Human Rights (FIHR) could not file this criminal complaint, but that is not stopping them from working to make it impossible for President Bush to travel to Europe in the future.

One of the incredible frustrations for those of us who have been pushing for torture investigations and prosecutions in this country is that there is so much prima fascia evidence of criminal wrong doing. The CRR and FIHR have done yeoman’s work in putting together all the supporting legal details that are publicly known about the criminal President Bush’s role in approving the use of torture. You can read the complaint here, but let me give you a summary.

There are a lot of moving pieces the overall narrative of torture and there are things that we do not actually know which can provide confusion. In the complaint the CCR shows first that it was under President Bush’s and no others authorization that detainees from Afghanistan and else where were not to fall under the Geneva Conventions, that it was he who approved the use of so called “enhanced interrogation” and that he had been advised that some of his actions were illegal under the Geneva Convention rules.

They then rely on the investigations of the International Committee of the Red Cross for accounts from the so-called “High Value Detainees” on what happened to them under U.S. custody. Particularly horrifying is the account by Abu Zubaydah on how on his second time being waterboarded he lost control of his bladder from fear. Now when he is stressed he still loses control of his bladder.
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Graphic courtesy of lazyevaluator via Flickr

File it under going down the wrong damned path, again. The New York Times is reporting that the Obama administration is preparing to lift the ban on new military tribunals at Guantanamo Bay. Shortly after he was inaugurated President Obama directed Defense Secretary Gates to order a freeze on new indictments for detainees at our national shame of a prison camp. The intent was two fold, one to review the incredibly slipshod cases against the men held there and to allow for the planning to begin closing the prison camp.

Nearly two years have gone by and while the review of cases has been done, we are no closer to closing the camp than when President Bush was in office. It is not completely the fault of the President that the camp has not closed. There has to be funding to move and house the detainees (they aren’t prisoners because they have not been convicted of anything) somewhere else and the Congress has shown just how lily-livered they are by consistently voting against funding to do exactly that.

Which is not to say that the Executive Branch is doing the right thing either. It seems that one of the first people to be charged, perhaps within weeks of ending the ban is one
Abu al-Rahim al Nashiri who is accused in planning the bombing of the U.S. Cole in 2000. If that name sounds vaguely familiar it is because Mr. Nashiri is the third known person to have been tortured by use of waterboarding by the United States government.

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It is a bit of a philosophical conundrum if one can actually do good through bad methods. Of course you have to define good and bad, which are always value judgments. Let’s make this a little more concrete; one of the Presidents unfulfilled promises is to close the prison at Guantanamo Bay. It is a national shame that a prison was built specifically to try to avoid the legal system of the United States. There have been credible allegations of torture there, as well as statements by Bush era officials that the totality of treatment there also rises to the level of torture.

Over time the numbers of prisoners held there have been reduced from a high of over 800 to 174 today. The problem is that for those 174 they are basically in legal limbo. 50 of them are in the category of having no plans to charge nor will they be released. This is an obvious problem for our system of law. For the remaining 124 the plan has been to treat them like other criminals, charge them in federal court, present the evidence against them and see if we can convince a jury they should be imprisoned in one of our Super-Max prisons here the United States, just like any other criminal.

However the fear mongering by the Republicans and the acceptance of it by some of our more….oh hell I am just going to say it cowardly Democrats, has made this a political issue. In the recently passed Defense Authorization Bill, language was included that prevents the spending of military money for moving the prisoners from Guantanamo to the United States, even for trials and such. The language also limits but not completely prohibits the Executive branch from releasing the prisoners to a third country without a series of certifications and exemptions that, in practice, will make it all but impossible.

The White House and the President are still clear in their desire to close one of national shames, the Gitmo prison, but to do so they may have to resort to tactics used and abused by the criminal Bush administration, namely a signing statement.

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One of the reasons I have always argued for a full investigation of the treatment of prisoners by the U.S. government is that the truths is going to come out sooner rather than later. For those who want to hide from accountability under the law later is always the better goal. The longer it takes for the abuses of the Bush Administration torture program to come to light the less likely there is to be an outcry and the more likely those who ordered and carried out torture are to elderly or dead.

Today the British government lost its appeal and was forced to disclose a new piece of the torture puzzle. In 2002 a British subject by the name of Binyam Mohamed was arrested in Pakistan. He claims he was tortured there, then sent to Morocco where he was also beaten and finally in 2004 sent to Guantanamo Bay. If Mr. Mohamed’s name seems familiar to you, it should. He is the man who claims he was tortured by a scalpel slicing his genitals.

What makes Mr. Mohamed’s case particularly galling (as if genital slicing was not enough) is that he has been released without ever being charged either by the British or the U.S.

Mr. Mohamed is one of seven British subjects who are suing their government for its complicity in torture. This new information came from a summary that a judge wrote after reviewing intelligence reports from the United States.

Here are the seven paragraphs, from the Guardian:

It was reported that a new series of interviews was conducted by the United States authorities prior to 17 May 2002 as part of a new strategy designed by an expert interviewer.

v) It was reported that at some stage during that further interview process by the United States authorities, BM had been intentionally subjected to continuous sleep deprivation. The effects of the sleep deprivation were carefully observed.

vi) It was reported that combined with the sleep deprivation, threats and inducements were made to him. His fears of being removed from United States custody and "disappearing" were played upon.

vii) It was reported that the stress brought about by these deliberate tactics was increased by him being shackled in his interviews

viii) It was clear not only from the reports of the content of the interviews but also from the report that he was being kept under self-harm observation, that the interviews were having a marked effect upon him and causing him significant mental stress and suffering.

ix) We regret to have to conclude that the reports provide to the SyS [security services] made clear to anyone reading them that BM was being subjected to the treatment that we have described and the effect upon him of that intentional treatment.

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I know that today will mostly be consumed with the Massachusetts Senate special election, but there are things going on in the realm of the Bush administrations war crimes that need to be discussed. Yesterday Scott Horton of Harper’s magazine published some new reporting on the June 9th 2006 “suicides” at Guantanamo Bay which highlights the need for the appointment of a Special Prosecutor to fully investigate the detention and torture of prisoners.

"Originally posted at Squarestate.net"

Something happened on the night of June 9th 2006. Three men died, their deaths were ruled suicides even though a Harper’s says in his article:

According to the NCIS, each prisoner had fashioned a noose from torn sheets and T-shirts and tied it to the top of his cell’s eight-foot-high steel-mesh wall. Each prisoner was able somehow to bind his own hands, and, in at least one case, his own feet, then stuff more rags deep down into his own throat. We are then asked to believe that each prisoner, even as he was choking on those rags, climbed up on his washbasin, slipped his head through the noose, tightened it, and leapt from the washbasin to hang until he asphyxiated. The NCIS report also proposes that the three prisoners, who were held in non-adjoining cells, carried out each of these actions almost simultaneously.

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Yesterday the DC Court of Appeals upheld the Bush era assertion of presidential detention policies, even in the face of the Boumediene decision. For those who don’t obsessively follow the law like I do,Boumediene was the case where the Supreme Court ruled that Guantanamo Bay prisoners had to be allowed to challenge their detention under habeas corpus filings.

In the matter of Al-Bihani v Obama the three judge panel upheld the ruling of District Judge Richard Leon. The ruling found that only domestic law applied to the presidents detention powers in a time of war. This of course ignores Article 7, paragraph 2 of the Constitution which reads;

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

"Originally posted at Squarestate.net"

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It looks as though the Center for Constitutional Rights is going to be the one to move the ball forward on getting the facts about the so called Enhanced Interrogation Techniques out, once again. Yesterday they learned of existence of video and audio tape evidence of the interrogation of the Mr. al Qahtani, the prisoner who was the victim of the “First Special Interrogation Plan” by the US Government.

This is more than a little bit of a big deal, as Mr. al Qahtani is the one of the Guantanamo Bay prisoners who the Susan Crawford, the Convening Authority of the Military Commissions said could not be brought to trial because the totality of his treatment in US custody since February 2002 amounted to torture. For those who don’t know, torture is not just defined by single acts like waterboarding, but under Federal and International law includes the totality of treatment.

Rather than just assert the treatment of Mr. al Qahtani was torture, I am going to detail what we know happened to him and the observations of the FBI as to the result and allow you to decide for yourself if this indeed rises to the standard of torture. Please keep in mind we do not have all the details, only what has been obtained by the CCR and by leaks to the press.

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Last week the President made a speech about the closing of Guantanamo Bay Prison. Most of us politically savvy (obsessed?) folks have heard it and heard some of the various analysis of it. One area of concern was the President’s contention that, due to factors which happened in the previous administration, he might not be able to try all of the accused prisoners in Federal Courts as he had previously promised. He went further to saying he thought that a revamped Military Commissions structure could be used to do the job, and thus avoid trying these men in Federal Court.

This has lead to a lot of consternation on the left side of the Blogosphere. The Dog thought it would be worthwhile to take a look at the role Military Commissions have played in the United States since prior to success of our rebellion against the British Crown.

The first thing we need to do is understand that whatever the structure the President is thinking of it will not be the same as the one developed under the criminal Bush Administration. It is easy to for us to jump to the conclusion that the President is being lazy or disingenuous Read the rest of this entry →