Tag: Military Commissions

On Sept. 11, 2001, Marine Lt. Col. Stuart Couch’s friend died co-piloting the second plane to hit the World Trade Center. Soon after, Couch became one of the first military prosecutors assigned to the U.S. military base at Guantánamo Bay to prosecute men alleged to have carried out the terrorist plot. He ultimately would refuse to prosecute one detainee: Mohamedou Ould Slahi. “It became clear that what had been done to Slahi amounted to torture,” Couch says. “Specifically, he had been subjected to a mock execution. He had sensory deprivation. He had environmental manipulation; that is, cell is too cold, or the cell is too hot. … He was presented with a ruse that the United States had taken custody of his mother and his brother and that they were being brought to Guantánamo.” Couch says he concluded Slahi’s treatment amounted to illegal torture. “I came to the conclusion we had knowingly set him up for mental suffering in order for him to provide information,” Couch said. “We might very well have a significant problem with the body of evidence that we were able to present as to his guilt.”

The United States Court of Appeals for the District of Columbia Circuit overturned the conviction of Salim Ahmed Hamdan for providing material support for terrorism. Hamdan, a Yemeni, was captured in Afghanistan in 2001

The court ruled that the conviction could not stand because ,at the time of Handan’s conviction “under the international law of war in effect at the time of his actions, there was no such defined war crime”:

The Military Commission Act, a law passed in 2006, does not authorize such retroactive prosecutions, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit ruled. [..]

The ruling called into question whether other Guantanamo detainees  accused of being part of Al Qaeda but not of plotting any specific terrorist attack can receive military trials.

The opinion was written by Judge Brett Kavanaugh, who worked as a lawyer in the White House for President George W. Bush before he was appointed to the bench. His opinion was largely joined by Chief Judge David Sentelle and Judge Douglas Ginsburg, appointees of Ronald Reagan.

Zachary Katznelson, senior staff attorney at the American Civil Liberties Union, said the decision “strikes the biggest blow yet against the legitimacy of the Guantánamo military commissions, which have for years now been trying people for a supposed war crime that in fact is not a war crime at all.” He said the  government should prosecute in civilian courts any Guantánamo prisoners against whom it has enough admissible evidence.

This should come as no surprise to the administration since, as Marcy Wheeler at emptywheel noted in her analysis, this had been predicted (pdf) by an assistant attorney general over three years ago:

There are two additional issues I would like to highlight today that are not addressed by the Committee bill that we believe should be considered. The first is the offense of material support for terrorism or terrorist groups. While this is a very important offense in our counterterrorism prosecutions in Federal court under title 18 of the U.S. Code, there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war. The President has made clear that military commissions are to be used only to prosecute law of war offenses. Although identifying traditional law of war offenses can be a difficult legal and historical exercise, our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.

The DC court agreed:

   First, despite Hamdan’s release from custody, this case is not moot. This is a direct appeal of a conviction. The Supreme Court has long held that a defendant’s direct appeal of a conviction is not mooted by the defendant’s release from custody.

   Second, consistent with Congress’s stated intent and so as to avoid a serious Ex Post Facto Clause issue, we interpret the Military Commissions Act of 2006 not to authorize retroactive prosecution of crimes that were not prohibited as war crimes triable by military commission under U.S. law at the time the conduct occurred. Therefore, Hamdan’s conviction may be affirmed only if the relevant statute that was on the books at the time of his conduct – 10 U.S.C. § 821 – encompassed material support for terrorism.

   Third, when Hamdan committed the relevant conduct from 1996 to 2001, Section 821 of Title 10 provided that military commissions may try violations of the “law of war.” The “law of war” cross-referenced in that statute is the international law of war. See Quirin, 317 U.S. at 27-30, 35-36. When Hamdan committed the conduct in question, the international law of war proscribed a variety of war crimes, including forms of terrorism. At that time, however, the international law of war did not proscribe material support for terrorism as a war crime. Indeed, the Executive Branch acknowledges that the international law of war did not – and still does not – identify material support for terrorism as a war crime. Therefore, the relevant statute at the time of Hamdan’s conduct – 10 U.S.C. § 821 – did not proscribe material support for terrorism as a war crime.

   Because we read the Military Commissions Act not to retroactively punish new crimes, and because material support for terrorism was not a pre-existing war crime under 10 U.S.C. § 821, Hamdan’s conviction for material support for terrorism cannot stand. We reverse the judgment of the Court of Military Commission Review and direct that Hamdan’s conviction for material support for terrorism be vacated.

This ruling could obviously effect the convictions and prosecutions of other Guantánamo detainees. The Administration has yet to announce whether it will appeal, I suspect that they will try.

The Obama administration has gone over to the dark side with stretching the “terrorist” category, going far further that Bush or Cheney would ever had dreamed. They have now compared an uprising in 1818 by the Seminole tribes in Florida to Al Qaeda to justify prosecutions of detainees at Guantanamo

Bitter analogy in war crime case: Indians, al Qaeda

By Carol Rosenberg

Seminoles in 1818 similar to al Qaeda in 2001? Some Pentagon prosecutors appeared to make this analogy to support a Guantánamo war crimes conviction, then clarified in a war court filing.

Pentagon prosecutors touched off a protest – and issued an apology this week – for likening the Seminole Indians in Spanish Florida to al Qaeda in documents defending Guantánamo’s military commissions.

Citing precedents, prosecutors reached back into the Indian Wars in arguments at an appeals panel in Washington D.C. Specifically, they invoked an 1818 military commission convened by Gen. Andrew Jackson after U.S. forces invaded then-Spanish Florida to stop black slaves from fleeing through a porous border – then executed two British men for helping the Seminole Indians.

Navy Capt. Edward S. White also wrote this in a prosecution brief:

“Not only was the Seminole belligerency unlawful, but, much like modern-day al Qaeda, the very way in which the Seminoles waged war against U.S. targets itself violate the customs and usages of war.”

A native American advocacy group complained to the military court. Defense lawyers for two Yemenis convicted of war crimes at Guantánamo countered that the behavior of Jackson, the future U.S. president now on the $20 bill, was no shining example of American military justice.

A politically ambitious Jackson, defense lawyers wrote, waged “an illegal war” that set fire to entire Indian villages “in a campaign of extermination.”

In the legal precedent, U.S. troops convicted two British traders, Alexander Arbuthnot and Robert Ambrister, for helping the Seminoles and escaped slaves and sentenced them to a whipping. Jackson, a slave owner, declared the punishment too soft. He had them executed.

Florida historians are familiar with the episode.

“Arbuthnot was hanged from the yard arm of his own ship,” said University of Florida history professor Jack Davis. “Ambrister was killed by firing squad.”

At issue in the Court of Military Commissions Review is whether a newly minted post 9/11 war court crime – providing material support for terror – is legitimate for prosecution at a war crimes tribunal.

Marcy Wheeler at FDL comments that “our government is siding with slavery, genocide of Native Americans, and Andrew Jackson’s illegal belligerency, it is citing our own country’s illegal behavior-to find some support for the claim that material support is a military crime.”

Defense Department general counsel Jeh Johnson sent a letter of apology to the Seminole tribe but didn’t back away from the analogy.

But Defense Department general counsel Jeh Johnson made clear in the single-page letter that the U.S. government was standing by its precedent from Gen. Andrew Jackson’s Indian Wars in its bid to uphold the life-time conviction of Osama bin Laden’s media secretary at Guantánamo’s Camp Justice.

Johnson delivered a speech at the Pentagon in commemoration of Martin Luther King day that twisted Dr. King’s antiwar philosophy into support for the Afghan and Iraq wars.

What Marcy said:

And so it is that our government clings desperately to one of the darkest chapters of our history to legitimize its current actions. Rather than reflect on what that means-how damning it is that we can point only to Andrew Jackson’s illegal treatment of Native Americans to justify our current conduct-the government says simply, “a precedent is a precedent!”

Obama’s boys have now thrown Native Americans under the bus. Welcome, my friends, you have lots of company.

Not that I was ever in but I was willing to give Barack Obama the benefit of the doubt once he was elected but since kicking his base supporters off the bus in the middle of the desert, I can’t even hold my nose to vote for him. As was pointed out in a Raw Story article, these are just a few of the reasons:

1. Health care for all

If you’re an American making less than $30,000 a year, chances are you still have trouble seeing a doctor, despite the passage of President Obama’s health care reform plan. In 2007, then-Senator Obama said he wanted to make sure no American is without access to vital medical attention and proposed using revenues from the soon-to-expire Bush tax cuts to fund it. When the campaign laid out their specific plans in 2008, they included a “public option” that would be paid for by the public at large and made available to anyone who could not obtain coverage through their employer or other public program.

We all know how well that turned out, a massive sell out to the health insurance  and pharmaceutical industry and a cave ro extending the Bush (er, Obama) tax cuts. Yes, the consumer is forced to buy an inadequate insurance policy and still not have access to a doctor but hey, they’re insured. Now the Republicans are attacking Medicare and Medicaid so the government can fund more imperial wars and buy bigger and better weapons while giving the wealthy even more tax cuts.

2. Close Guantanamo

As a symbol of everything that liberals thought to be wrong with the Bush-era, closing the Guantanamo Bay military prison in Cuba should have been an easy target for the new and popular president and his Democratic super-majority in Congress — and, in fact, then-candidate Obama promised to do just that. But as he soon found out, strategic and political calculations have made it almost impossible to shuck.

Now we have even bigger and better military tribunals, no trials in civilian courts for those scary men in Guantanamo and for 47 of them, the possibility no trial ever and the rest of their lives in detention all in the name of the never ending War on Terror (On wait, we don’t call it that any more).

3. Defend labor rights

“Understand this,” Obama said during a campaign rally in 2007. “If American workers are being denied their right to organize and collectively bargain when I’m in the White House, I will put on a comfortable pair of shoes myself, I’ll will walk on that picket line with you as President of the United States of America.” (Watch.)

He can’t find his comfy shoes? Michelle must have tossed them when they moved into the executive mansion. Truthfully, at this  point, it’s is best he stay away and silent.

4. Reform the Patriot Act

Contrary to popular belief, Obama has never actually argued for a repeal of the Bush administration’s sweeping, post-9/11 security initiatives, which were passed with a mandatory “sunset” clause to overrule the concerns of civil libertarians at the time. Instead, Obama has consistently said he favors enhanced judicial oversight and a pullback from some warrantless searches — like the provisions that allow the FBI to access library records without a warrant.

Obama “reformed” it all right. Besides defending it in court, he got it extended even for even longer than the Republicans wanted without any changes. This extends the governments ability to spy on every private citizen until 2013, a non-election year, when it comes up for renewal again.

5. End the wars

Even as a candidate, Obama maintained that Afghanistan should be “the focus” of Bush’s terror war, and he pledged to make it so. But the president was also swept into power on a wave of anti-war fervor behind his calls to end the occupation of Iraq. Iraq has calmed down quite a bit as U.S. troops steadily stream out of the country, but Afghanistan is more violent than ever amid Obama’s own “surge.”

The US will have troops in Iraq and Afghanistan for years. But, but, his loyalist supporters say, they aren’t “combat troops”. I hate to tell them but ALL troops are “combat troops”. Not only this, now there is the bombardment of Pakistan, Yemen and Libya.

One day after announcing his bid for reelection, Obama’s poll numbers show less than half the country believes President Obama deserves reelection, with disaffected liberals now a fast growing demographic and independents split. Would the country have been better off with McCain or Hillary as President is useless speculation. All that is important now is Dick Cheney is pleased.

Again, Barack Obama changes his mind and does a complete reversal of doing what he said he would do. Surprised? You shouldn’t be. This is the “change you can believe in”.

In a Reversal, Military Trials for 9/11 Cases

By Charlie Savage

WASHINGTON – The Obama administration, ending more than a year of indecision with a major policy reversal, will prosecute Khalid Shaikh Mohammed and four other people accused of plotting the Sept. 11 terrorist attacks before a military commission and not a civilian court, as it once planned.

Attorney General Eric H. Holder Jr. announced on Monday that he has cleared military prosecutors at Guantánamo Bay, Cuba, to file war-crimes charges against the five detainees in the Sept. 11 case.

Mr. Holder had decided in November 2009 to move the case to a federal civilian courtroom in New York City, but the White House abandoned that plan amid a political backlash.

Of course this decision is being praised by the fear mongering cowards like Sen. Chuck Schumer (D-NY) and Sen. Lindsay Graham who opposed the trials being held in New York City because it was too dangerous, major trials are too expensive, too many secrets will be spilled, public trials will radicalize the enemy, the public doesn’t want it and on and on.

This has been handled badly by Holder from the start. Instead of meeting with NYC officials, the mayor, police commissioner, etc, before he announced his plan last year to hold civilian trials in the city, the announcement came with little warning and no discussion. Of course they were all taken aback. There were hundreds of questions and no answers from the Obama DOJ. “Don’t worry, I’ve got this” is the typical Obama response to any concerns. Now Obama and all the his loyal supporters are laying the blame on congress for passing a bill that refused to fund the closing of Guantanamo and prevented bringing any of the detainees to the United States for trial. But did they challenge this law in the courts as being unconstitutional restriction on the ability of the Justice Department to prosecute these men fairly? No, Obama and Holder did not. Instead, as is typical of this administration, they dithered for a year and then caved.

Dahlia Lithwick roundly criticizes this decisions that creates a “two-tiered system of justice”.

Of course, exactly the same unpersuasive claims could have been made about every major criminal trial in Western history, from the first World Trade Center prosecution to the Rosenberg trial to the Scopes Monkey trial to Nuremburg. Each of those trials could have been moved to some dark cave for everyone’s comfort and well-being. Each of those defendants could have been tried using some handy choose-your-own-ending legal system to ensure a conviction. But the principle that you don’t tailor justice to the accused won out, and, time after time, the world benefited.

But make no mistake about it: It won’t stop here. Putting the administration’s imprimatur on the idea that some defendants are more worthy of real justice than others legitimates the whole creeping, toxic American system of providing one class of legal protections for some but not others: special laws for children of immigrants, laws for people who might look like immigrants, different jails for those who seem too dangerous, special laws for people worthy of wiretapping, and special laws for corporations. After today it will be easier than ever to use words and slogans to invent classes of people who are too scary to try in regular proceedings.

There may also be some ulterior motive for thees military commissions since the rules of evidence are different than in a civilian court that would exclude any evidence obtained through torture and the fruit of that poisoned tree. The National Association of Criminal Defense Lawyers released a statement titled The National Association of Criminal Defense Lawyers “At Guantanamo, “Detainees Are Presumed Guilty” that enumerates the faults of these commissions despite the so-called revamping :

“Despite some cosmetic changes since the Bush-era commissions, the commission rules still permit the government to introduce secret evidence, hearsay and statements obtained through coercion,” said the association’s Executive Director, Norman Reimer. “NACDL maintains that the rules and procedures for these commission trials raise serious questions about the government’s commitment to constitutional principles upon which our country was founded. “

David Kaye at FDL gives some interesting argument for what may well have been a ruse by this administration that intends to use the tribunals as a propaganda tool and never challenged congress.

What no commentator has stated thus far is the plain truth that the commissions’ main purpose is to produce government propaganda, not justice. These are meant to be show trials, part of an overarching plan of “exploitation” of prisoners, which includes, besides a misguided attempt by some to gain intelligence data, the inducement of false confessions and the recruitment of informants via torture. The aim behind all this is political: to mobilize the U.S. population for imperialist war adventures abroad, and political repression and economic austerity at home.

Holder claims he wanted civilian trials that would “prove the defendants’ guilt while adhering to the bedrock traditions and values of our laws.” The Attorney General blamed Congress for passing restrictions on bringing Guantanamo prisoners to the United States for making civilian trials inside the United States impossible. Marcy Wheeler has noted that the Congressional restrictions related to the Department of Defense, not the Department of Justice, and there is plenty of reason to believe the Obama administration could have pressed politicians on this issue, but chose not to.

This is such a farce that further exploits the victims of 9/11 when Holder dared claim “today’s decision as one of fairness to the 9/11 victims, who should have to wait no longer for their day in court”. Really? Then what took them two years? Human Rights First’s Daphne Eviatar said

True respect for the 9/11 victims would have meant bringing the men suspected of the most heinous attack on U.S. soil in American history to trial in a public U.S. federal courthouse, for the victims and all the world to see. It would have meant securing solid verdicts that wouldn’t later be vulnerable to reversal by the Supreme Court, as would their convictions in a military commission. It would have meant presenting the voluminous evidence that prosecutors had amassed over the past decade detailing the crimes that each man had allegedly plotted and carried out. And it would have meant showcasing that the United States not only preaches about the importance of the rule of law around the world, but actually believes in and follows it here at home.

snip

But the administration had more than two years during which it could have transferred these men to federal courts and begun their prosecutions, and it didn’t. If the administration had moved these cases forward when it had ample opportunity, the convictions and sentences would likely have already been pronounced. Military commissions trials, meanwhile, will take at least twice that time to resolve, with the very possible result that either conviction or sentences will be overturned, given the commissions’ shaky legal grounding.

There is no excuse for the tribunals. Human Rights First point out the fact that “civilian federal courts have have convicted more than 400 terrorists since the 9/11 terrorist attacks. The discredited military commissions at Guantanamo Bay have convicted only 6, almost all via plea bargains that resulted in much lighter sentences due to the shaky legal ground of many of the military commission charges and procedures”.

Obama is determined to continue with the Bush policies that have taken this country down the path that covers up war crimes and makes a mockery of our justice system.

Two years and two months ago the American people hailed a new President and an end to our national nightmare of the Bush reign of eight years of trampling the Constitution, the laws that govern  and the economy. Since then the reality that nothing has changed comes down with crashing reality. This President, Barack Hussein Obama, is as complicit as the last President in the war on the US Constitution, International laws and treaties and human rights. Today it became evidently clear that Obama is not Bush, he’s Cheney.

Today Obama issued an Executive Order (pdf) that not only will restart the Military Commissions at Guantanamo but also orders indefinite detention for forty seven detainees without any of them ever being charged with a crime. Why? Because Obama is covering up the war crimes of the previous administration which, according to the Nuremberg Principles, is a war crime. Claims that the evidence against these men would harm national security just rings hollow.

Marcy Wheeler at FDL explains that “the new and improved Military Detention Regime has two parts”. The first part relates to the indefinite detention polices without anything other than a claim of “because I say it’s justified”:

“Continued law of war detention is warranted for a detainee subject to the periodic review in section 3 of this order if it is necessary to protect against a significant threat to the security of the United States.“

. . . .this doesn’t appear to tie to any wrong-doing on the detainee’s part. “It” here appears to refer to “continued law of war detention,” suggesting that “it” may be necessary regardless of any threat posed by the detainee himself.

Also note that the standard “significant threat to the security of the United States” doesn’t invoke the war (ostensibly, the war against Afghanistan) itself. This seems very very wrong. It also seems designed to authorized the continued detention of the Yemeni detainees who we admit aren’t themselves a threat, but must be detained, our government says, because they come from a dangerous country.

(all emphasis mine)

The EO also restarts the Military Commissions where evidence that has been attained through torture is admissible.

Dana Milbank, in his Op-Ed, remarked that the conference call with reporters and “some top-notch lawyers from across the executive branch” with “ground rules required that the officials not be identified”, sounded very much like what the Bush lawyers used to say:

It was another important moment in the education of Barack Obama.

He began his presidency with a pledge to close the military prison at Guantanamo Bay within a year. Within months, he realized that was impossible. And now he has essentially formalized George W. Bush’s detention policy.

Even the Tea Baggers, like newly minted Senators Rand Paul (R-KY) and Mike Lee(R-UT), are saying indefinite detention is wrong and calling for trials in civilian courts:

Fox News contributor Andrew Napolitano, subbing for Glenn Beck on his television show, hosted Sens. Rand Paul (R-KY) and Mike Lee (R-UT) to talk about a variety of issues. At one point, Napolitano mentioned Obama’s announcement and queried the two senators about their positions on indefinite detention. Lee and Paul both broke with the standard positions of their party, slamming the policy and endorsing trials for terrorism suspects instead. Paul said that he had met with a mother of a 9/11 victim who said that what she really wanted to see was justice, and that the best way to do that was to “have trials.” Lee said that detaining someone who “has been tried and found not guilty” is “particularly problematic”

Human Rights Watch points out that 47 of these men will never be tried. Those detainees will be able to “submit documentary evidence every six months, but will only go before the full panel once every three years”. However, as the press release states, “the use by the US of indefinite detention without trial still fails to meet the most basic elements of due process under international law”.

While Obama’s EO confirms the administration’s commitment to prosecuting  some cases in civilian courts

“Is added review an improvement? Yes. Does it make US detention policies lawful? No,”

said Andrea Prasow, senior counterterrorism counsel at Human Rights Watch. “Signing an executive order does not suddenly make it legal to lock people up and hold them forever without proving they have committed a crime.”

HRW further notes:

. . .compared to federal courts, military commissions have moved very slowly. During the nine years since the military commissions were first announced, military prosecutors have brought only six cases to completion, four of them by plea bargain. Federal courts, in contrast, have prosecuted hundreds of terrorism-related offenses during the same period, convicting, among others, 9/11 conspirator Zacarias Moussaoui and “shoe bomber” Richard Reid.

“Any trial in the military commission system carries the stigma of Guantanamo and will be tainted by a lack of due process,” Prasow said. “A verdict in the federal court system, in contrast, would be recognized internationally as legitimate.”

As I read through the executive order and news articles, all that I could think of was that surely, Dick Cheney will approve.

Up Date: As expected, Glenn Greenwald weighed in:

None of this is the slightest bit unexpected. The new Executive Order has been previewed for months and merely codifies what has long been Obama’s policy: “long” in the sense of “since he’s inaugurated”  — not, of course, “when he was a Senator and presidential candidate.” I’m writing about this merely to address the excuse from the White House and its loyalists that the fault for this policy, this inability to “close Guantanamo,” lies with Congress, which forced the President to abandon his oft-stated campaign pledge. That excuse is pure fiction.

It is true that Congress — with the overwhelming support of both parties — has enacted several measures making it much more difficult, indeed impossible, to transfer Guantanamo detainees into the U.S. But long before that ever happened, Obama made clear that he wanted to continue the twin defining pillars of the Bush detention regime: namely, (1) indefinite, charge-free detention and (2) military commissions (for those lucky enough to be charged with something). Obama never had a plan for “closing Guantanamo” in any meaningful sense; the most he sought to do was to move it a few thousand miles north to Illinois, where its defining injustices would endure.

(emphasis mine)

He also sited an article by Daphne Linzer at ProPublica:

While the order is new, most of the ideas it contains are not. This is the third time such a board has been created for nearly the same purpose. Two similar processes to review detainee cases were in place during the Bush administration. Like its predecessors, the Obama administration’s review process will operate outside the courts and will be subject to no independent review.

While the idea is recycled, Obama now owns it.