Archive for September, 2007

The Military Commissions –- the Stalinesque show trials dreamt up in November 2001 by Dick Cheney and his cabal of close advisors, including David Addington –- have been dogged by controversy ever since. Killed off by the Supreme Court in June 2006, brought back to life through the ghoulish Military Commissions Act a few months later, and then killed off again three months ago, this long-running horror show –- which is beginning to rival A Nightmare on Elm Street’s Freddie Krueger for deathless longevity –- returned from the grave again on Monday, when a trio of judges in a hastily convened appeals court ruled that announcements of the Commissions’ death in June had been premature. (For the full story, see my recent article here).

So far so good for the “Dark Side,” then. But wait! Before the ink had even dried on the script for the Commissions’ latest rebirth, the Wall Street Journal reported that all was not well behind the scenes, and that the monster’s puppeteers were engaged in a bitter dispute over the future of their masters’ creation. According to “people familiar with the matter,” as Jess Bravin described it, the Commissions’ chief prosecutor, Col. Morris Davis, who took the job in 2005, has “filed a formal complaint,” alleging that Brig. Gen. Thomas Hartmann, the legal adviser to retired judge Susan Crawford, the “convening authority” overseeing the trials, has “overstepped his mandate by interfering directly in cases.” In a letter seen by the WSJ, Davis suggested that both he and Hartmann should resign “for the good of the process.” Davis added, “If he believes in military commissions as strongly as I do, then let’s do the right thing and both of us walk away before we do more harm.”

Col. Morris Davis

Officials cited by Bravin said that the dispute “has left the prosecution office in disarray,” with prosecutors “uncertain who is in command and which cases they should pursue,” out of the 80 or so that have been regularly touted by the administration as those who will face what Bravin describes, a little gingerly, as the “offshore court.” The dispute is apparently so severe that Davis has “refused to file additional charges against Guantánamo inmates until [it] is resolved,” and the Pentagon’s general counsel, William J. Haynes II –- a protégé of David Addington, who was involved in the development of the administration’s torture policies (aka “enhanced interrogation techniques”) in 2002 –- authorized an investigation, which, according to a senior defense official, found in favor of Hartmann. “Davis is obliged to heed the orders of Hartmann whether or not he likes them, so long as they’re lawful,” the official explained. “And there’s no indication that he’s issued any unlawful orders.”

The conflict is already affecting the case of the Yemeni Salim Hamdan, one of Osama bin Laden’s drivers. Hartmann has apparently suggested offering Hamdan a plea bargain –- perhaps similar to the one that saw David Hicks released in May –- overruling “the objections of trial prosecutors.” And this is where it gets really interesting, as the conflict seems to be focused on Hartmann’s opposition to what he perceives as the weakness of the cases that Davis has chosen to pursue: those which, like Hicks, Hamdan and the Canadian child soldier Omar Khadr, “rely largely on unclassified evidence, allowing trials to be open to the press to address criticism that the process is too secretive,” even though these cases “tend to involve relatively undramatic charges, such as providing services to a terrorist organization.” Hartmann, in contrast, wants higher profile cases, which “could attract more public attention and perhaps also support for the tribunal system, even though they may involve closed proceedings.”

The problems with the positions adopted by both Davis and Hartmann are apparent, and neither shows the system in a good light. On the one hand, there are the admitted weakness of Davis’ cases, and, on the other, Hartmann’s presumption that a system involving “closed proceedings” might attract public support. Less clear is how the conflict will be resolved. Hartmann –- a reservist who took office in July, and whose civilian job is chief counsel to the Connecticut-based Mxenergy Holdings Inc. –- is actually Davis’ superior officer, and is “supposed to provide impartial advice” to Susan Crawford. According to the rules set up for the Commissions, his role is to “make an independent and informed appraisal of the charges and evidence,” to help Crawford “decide whether charges proposed by the prosecutors are sufficient to go to trial.”

Brig. Gen. Thomas Hartmann

However, he is not universally admired. Having taken charge of the prosecution office while Davis was away, recovering from surgery, he apparently took advantage of the prosecutor’s absence to shake things up as he saw fit. One critic is Cully Stimson, the former deputy assistant defense secretary for detainee affairs, who is now a fellow at the Heritage Foundation. (Memorably, though Jess Bravin didn’t mention it, Stimson, who helped draft the Commissions’ rules, lost his government job earlier this year, after starting a witch-hunt against corporate law firms who do pro bono work for the detainees). Stimson, who appears more contrite these days, said that he didn’t anticipate Hartmann “meddling in the day-to-day operations of the prosecutor.” He explained that, if so advised by Hartmann, Crawford could “negotiate plea bargains even over the prosecutor’s objection,” but added that, just as the defense “should not be influenced or have the appearance of being influenced, so they can do the best for their client, the same should be true for the prosecution.”

Other critics have spoken out from within the prosecutor’s office. Although a lawyer close to the process told Bravin that Hartmann had complained that, after four years, the prosecution was “still unready to try cases,” and was frustrated with their “can’t do” approach, some prosecutors have complained that Hartmann “is ‘micromanaging’ cases he doesn’t fully understand.” The case of Salim Hamdan, as Bravin describes it, “has struck a particular nerve.” Prosecutors have explained that negotiating a plea deal with Hamdan “would be a blow to the government’s credibility.” In a particularly revealing admission, which illuminates the failures of the Commission system more than anyone involved in it would care to admit, one prosecutor said, “Think of our only other ‘success’ in this –- David Hicks. How is that a success for the United States government? How does that justify Guantánamo?”

As Col. Davis fumes, contending that the Military Commissions Act “bars outside interference in the ‘professional judgment’ of prosecution and defense lawyers,” and stating, in no uncertain terms, that “If someone above me tries to intimidate me in determining who we will charge, what we will charge, what evidence we will try to introduce, and how we will conduct a prosecution, then I will resign,” those whose reputations are really on the line –- President Bush and Vice President Cheney –- must be hoping for a swift resolution to the in-fighting. Having just revealed the scale of their ambition, lining up the “high-value” detainees for Military Commissions by allowing them access to lawyers for the first time –- which, in the case of the longest-held detainee, Abu Zubaydah, is the first time in five and a half years that he has been allowed this right –- the last thing they need is for the squabbling among their monster’s puppeteers to bring the whole sorry charade crashing down once more.

Bring on the monster, then. Those of us who still believe in the rule of law know that this inept, misguided and unjust creation will collapse again sooner or later, anyway.

For more on the legal struggles over Guantánamo, see my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison.

As published on CounterPunch.

While waiting for my ship to come in –- the one that’s carrying the UK copies of The Guantánamo Files from the US printers –- I failed to notice that the book is already on sale in the US: Amazon here, University of Michigan Press here. The UK release date is officially November 8, but copies will also be on sale here within a week or so, and they can be pre-ordered from Amazon here or Pluto Press here. Signed copies will be available directly from me as soon as I have them, although the postage costs may be rather off-putting for anyone outside the UK/EU.

In other media developments, Slovenian speakers are directed to an article in the Slovenian newspaper Dnevnik by the journalist Kristina Bozic, who interviewed me in London recently. Those lacking the necessary linguistic skills may like to know that Kristina took the time to transcribe the interview, which I’ll be making available soon, once I’ve proof-read it, and –- er –- probably removed some of the more outré comments that I made about my least favourite Vice President after a few too many espressos. Manca Juvan, a photographer and fellow Slovenian, took the photo, which is dynamic, even if the bloke in it woke up in a hedge and forgot to shave. More of her work –- featuring considerably more impressive subject matter –- is available on her website, and it’s well worth a look.

And finally, for now, the documentary about Guantánamo and the secret prisons, which I first mentioned here, is progressing well, with Clive Stafford Smith and Moazzam Begg both taking time out of their incredibly busy schedules over the last few weeks to talk with passion and eloquence about Guantánamo. Work will start soon on editing it, and I hope to have a few clips to show in the not too distant future.

One thing you learn when studying Guantánamo is that nothing can ever be taken for granted, and the events of the last week have demonstrated, yet again, that this is the case. As lawyers for the Guantánamo detainees prepare, like a legal version of Groundhog Day, for a climactic Supreme Court showdown with the administration over the rights of the detainees to challenge the basis of their detention (replaying scenes which were first enacted over three years ago, in Rasul v. Bush, but which were derailed in last fall’s Military Commissions Act), another version of this seemingly endless saga –- focusing on similar challenges, in the District Court, to another dubious piece of post-Rasul legislation, the Detainee Treatment Act of 2005 –- hit a brick wall last Thursday.

In Washington, District Court Judge Ricardo Urbina dismissed 16 lawsuits, challenging the indefinite imprisonment of at least 40 detainees in Guantánamo, which had the knock-on effect of denying lawyers access to their clients. Crowing smugly, Justice Department lawyer Andrew Warden declared after the decision, “In light of this development, counsel access (both legal mail and in-person visits) is no longer permitted.”

That this is possible, 39 months after the Supreme Court ruled decisively, in Rasul v. Bush, that the detainees had the right to challenge the basis of their detention, and that habeas corpus was, as Justice John Stephens so memorably described it, “a writ antecedent to statute … throwing its roots deep into the genius of our common law,” demonstrates, succinctly, how the Bush administration has, for the last six years, shamed the “genius” of the American legal system by reducing it to a game of legislative ping-pong.

Although lawyers for the detainees remain confident that the Supreme Court will rule in the detainees’ favor (probably in spring 2008), this is a terrible setback for the detainees in question. Imprisoned without charge or trial for over five and a half years, they have no other contact with the outside world apart from through the minimal ministrations of the International Committee of the Red Cross, and their lawyers are often their only lifeline. This process is made that much harder when, year after year, the lawyers are driven to admit to their clients that, despite widespread opposition to the existence of Guantánamo, their attempts to bring them justice –- a day in court before a judge who can impartially weigh the evidence set before him by the government –- are repeatedly obstructed by the administration.

In all likelihood, Judge Urbina’s ruling will not shut down the lawyer-client relationship entirely. As reported by the Associated Press, Andrew Warden “outlined a series of legal steps that would be required before the attorneys could resume contact with the detainees.” After jumping through hoops and being generally belittled, more restrictive arrangements will be arranged with the lawyers, but they may come too late for the Libyan detainee Abdul Rauf al-Qassim, whose story I first reported here. Cleared by a military administrative board after five years at Guantánamo, al-Qassim, a deserter from the Libyan army, had spent a decade living in Afghanistan and Pakistan without raising arms against anyone, and was kidnapped from a house in Lahore, Pakistan, in May 2002, after fleeing Afghanistan with his pregnant Afghan wife.

Al-Qassim has spent most of this year fighting cynical attempts by the administration to return him to the country of his birth, where he has legitimate fears that he will be tortured. Wells Dixon, one of his lawyers at the Center for Constitutional Rights, explained that he would “most likely not be able to complete [the new] measures in time for a scheduled visit” with al-Qassim next month, which he described as “crucial,” because he was “in the midst of trying to prevent the government from transferring [him] back to Libya.” In measured tones, he added, “This is just the latest example of the government’s efforts to frustrate counsel access to detainees.” In a press release, another CCR attorney, Shayana Kadidal, spelt out al-Qassim’s plight in stronger terms: “We need to remember that this is a man the government has cleared for release –- as close to a statement of innocence as the government will ever issue. Abdul Rauf should never have been taken to Guantánamo in the first place, and the courts should not allow the government to ‘disappear’ him into Libya in order to cover up its own mistake.”

In a second, and far more shocking development, the Military Commissions at Guantánamo –- the widely derided show trials, which purport to provide justice, while relying on secret evidence obtained through torture –- stumbled back to life on Monday. Condemned as illegal under US law and the Geneva Conventions by the Supreme Court in June 2006, the Commissions were reinstated in the Military Commissions Act last fall, but were derailed again three months ago, when the military judges appointed to preside over the cases of child soldier Omar Khadr and Salim Hamdan, one of Osama bin Laden’s chauffeurs, shut down the trials, arguing, correctly, that the MCA had mandated them to try “illegal enemy combatants,” whereas the system that had made them eligible for trial –- the Combatant Status Review Tribunals, “administrative” hearings which also relied on secret evidence obtained through unknown means –- had only declared them to be “enemy combatants.”

After a farcical interlude, in which the administration declared petulantly that it would appeal the judges’ decisions, and was then pilloried when it transpired that the appeals court in question had not yet been established, the Court of Military Commissions Review convened a month ago in a borrowed courtroom near the White House.

Announcing their verdict on Monday, the court’s three military judges –- all appointed by the Pentagon –- agreed with Khadr’s military judge, Col. Peter Brownback, that Khadr’s classification as an “enemy combatant” at his Combatant Status Review Tribunal in Guantánamo “failed to meet the requirements for jurisdiction set forth in the Military Commissions Act,” but explained that Brownback had “erred” in ruling that a CSRT was required to determine that Khadr was an “unlawful enemy combatant” as a pre-requisite for bringing charges against him under the MCA. They added, moreover, that he had “abused his discretion in deciding this critical jurisdictional matter without first fully considering” the government’s evidence.

The decision was immediately condemned by human rights activists. Jameel Jaffer, the director of the American Civil Liberties Union’s national security project, declared, “This ruling may be a step forward for the military commissions but it’s a step backwards for the rule of law. While there are prisoners at Guantánamo who should be tried for war crimes, they should be tried under rules that are fair and that will be perceived as fair. The current rules fail this test. They permit the use of secret evidence, allow the introduction of coerced evidence, [and] limit the right of defendants to be represented by counsel of their choosing … A ruling that allows these tribunals to move forward is nothing to celebrate.”

More importantly, the verdict was also condemned by Khadr’s defense lawyers, led by Lt. Cmdr. William Kuebler, the principled military attorney, who, in the past few months, has described the Commissions as rigged, ridiculous, unjust, farcical, a sham, and a lawless process. As soon as Pentagon spokesman Bryan Whitman announced that Khadr’s trial had been revived, and that it was the Pentagon’s intention “to move out in an expeditious manner to get the military commission cases to trial,” Kuebler responded by saying that Khadr’s legal team would appeal, asking a civilian court in Washington to block the trial. “This court,” Kuebler explained, referring to the Court of Military Commissions Review, “had the chance to bring some degree of legitimacy to an otherwise lawless process,” adding, pointedly, “It failed to do so.” In a statement, he and Khadr’s other lawyers –- Dennis Edney and Nathan Whitling –- accused the military judge of “prohibited off-the-record coordination,” and explained that the date set by the Pentagon for Khadr’s trial to begin –- October 11 –- failed to allow them enough time to challenge the case. “It is the latest evidence of the government’s determination to rush forward with the flawed military commission process at breakneck speed, disregarding whatever rights of the accused that may get in the way,” Kuebler declared.

Expect more fireworks to follow from the latest in an increasingly long line of government-appointed military lawyers to have turned on their masters in the most principled manner possible. Those in any doubt that Lt. Cmdr. Kuebler means what he says should recall that in June he explained to a GQ reporter, “I think things have been done to people that under any definition except this administration’s very narrow one would be torture.”

For more on the legal struggles over Guantánamo, see my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison.

As published on CounterPunch.

Back in December 2004, during a hearing regarding the definition of “enemy combatants,” Judge Joyce Hens Green asked a pointed question to Deputy Associate Attorney General Brian Boyle: “If a little old lady in Switzerland gave money to a charity … and the money was passed to al-Qaeda, could she be held as an enemy combatant?” Memorably, Boyle fell for the bait, replying, “She could. Someone’s intention is clearly not a factor that would disable detention.”

This exchange that launched a thousand appalled intakes of breath has now been commemorated in a petition, organized by US attorney Anant Raut with the help of Amnesty International in Switzerland, in which not one, but one hundred little old ladies in Switzerland (led by Charlotte Muschg, above) have signed their names to a petition urging the US administration to repeal last year’s scandalously unjust Military Commissions Act, which removed habeas corpus rights from the detainees at Guantánamo. As the petition notes, “Under current law, the US Department of Defense can declare non-US citizens anywhere in the world ‘enemy combatants’ and detain them for the remainder of their natural lives without ever charging them with a crime, even if they never knowingly supported terrorist activities.”

For the full petition, visit the website of the International Justice Network, an organization that “leads human rights initiatives around the world by providing direct legal assistance and expertise to victims of human rights abuses and by creating a global network of legal professionals, non-governmental organizations and community-based human rights advocates in order to protect and promote human rights and the rule of law.”

I urge you to visit IJN’s website. In a pioneering case, the organization –- led by former Center for Constitutional Rights lawyer Tina Foster –- is fighting for the rights of detainees in Bagram (Guantánamo’s horrendously opaque mirror-prison in Afghanistan) to be at least afforded the minimal rights to legal representation that have been long fought for at Guantánamo. This is a crucial step in dismantling the all-encompassing secrecy that shrouds the many thousands of detainees held in other “War on Terror” prisons –- in Afghanistan, in Iraq, and in other undisclosed secret locations –- where even the minimal rights obtained by the Guantánamo detainees over the last three years are not recognized.

These prisoners are held not only without charge or trial, but also without access to lawyers, subjected solely to the whims of the US administration and the military, and with no outside contact whatsoever apart from sporadic visits from representatives of the International Committee of the Red Cross. If Guantánamo ever closes, their plight –- and their untold stories –- must not be forgotten, and must be the focus of the next wave of campaigners dedicated to restoring the rule of law to a renegade administration. Tina Foster and her colleagues are to be commended on making an early start in this vital task.

[Note: For the latest on IJN’s Bagram case, see the website. For a revealing insight into “extraordinary rendition” and the secret prisons –- and information on America’s Disappeared –- see Human Rights Watch’s February 2007 report, Ghost Prisoner: Two Years in Secret CIA Detention , which tells the story of Marwan Jabour, who was seized in Pakistan in May 2004, and held for nearly two and a half years in secret prisons].

Prior to visiting Canada for a short tour to publicize the plight of his client, Omar Khadr (profiled here and here), US military lawyer Lt. Cmdr. William Kuebler –- whose opposition to the US government’s system of trials by Military Commission was covered here and here –- issued a press release, which succinctly explained why it remains imperative for the Canadian government to act on his behalf.

“Allegedly indoctrinated and recruited as a child soldier in Afghanistan,” Kuebler wrote, “Omar was taken into US custody after being shot and critically wounded by US forces in a firefight [in Afghanistan] at the age of 15.” He continued: “Notwithstanding its leadership in international efforts to recognize child soldiers as victims in need of special protection and rehabilitation, Canada has remained virtually silent in Omar’s case, hiding behind vague assurances from the US government that Omar is receiving humane treatment and a fair trial in face of overwhelming evidence to the contrary. As a result, Omar now faces the prospect of being the first child to be prosecuted for ‘war crimes’ in modern history. He is to be tried before a military tribunal whose procedures are designed to secure convictions based on evidence derived from torture and coercion, and that fails to meet the minimum requirements for a fair trial under international law.”

Last Wednesday, on the day that, unremarked and uncelebrated, Omar Khadr turned 21 in Guantánamo, Kuebler made a further appeal to the government and the people of Canada, explaining, as the Ottawa Citizen described it, that “Five years of incarceration in Cuba has stunted Khadr’s development at a late-adolescent level,” and that he “functions as a boy of 13 or 14 and does not have a full grasp of his situation.” “I would say generally he understands what’s happening, to the extent that any of us do,” Kuebler said in an interview on Omar’s birthday. “But it’s very clear he doesn’t have the same grasp as a normal 21-year-old man would. He has not received the social interaction. He has not received an education. He has not received any of the things that a person would need at that age to become a functional adult.”

Last month, Kuebler and his fellow lawyers –- Dwight Sullivan, Dennis Edney and Lorne Waldman –- persuaded the Canadian Bar Association to lobby for Khadr’s release, after a meeting at which Edney stated, poignantly, that, “when he saw Mr. Khadr recently, his client was so mentally debilitated that he wanted nothing more than crayons and some paper to colour on.” As reported by the Globe and Mail, Edney added, “Contrary to federal government assurances that Mr. Khadr is doing just fine, his client is actually ‘ill and going blind. He needs all sorts of help.’”

On his brief Canadian tour, Lt. Cmdr. Kuebler followed up on this success by attracting the attention of Liberal opposition leader Stephane Dion, who repeated a plea he made last month for the Conservative government to demand Khadr’s repatriation to Canada, and made a statement in which he declared, accurately, that “Canada is alone among western nations in not having secured the release from Guantánamo of one of its nationals.” He also said, as AFP reported, “Prime Minister Stephen Harper must finally ensure Khadr receives the same consular support that any other Canadian –- detainee or not –- would receive. It’s time for Canada to intervene, as so many other countries have done, to ensure that the charges against its citizens are dealt with, that he is tried in a legitimate court and that he receives due process.” Dion added that, if the US administration was unwilling to provide these assurances, the Prime Minister must “demand Mr. Khadr’s repatriation to Canada where he can be dealt with by our justice system, as has been the case with detainees from Australia, the United Kingdom and France.”

Despite securing legal support in Canada –- and apparently flying in the face of his own role as a lawyer –- Kuebler maintained throughout his visit that Khadr’s “hopes lie in a political, rather than judicial, solution.” He acknowledged that his client’s cause was unpopular in Canada –- not only because of the alleged terrorist activities of his father (who took the family to live in Afghanistan with Osama bin Laden, and was killed in a firefight in Pakistan in October 2003), but also because of “controversial statements made by other members of his family” –- but insisted that “enough is enough,” explaining, “Really, what you have is the US government attempting to punish Omar for the alleged sins of his father and the Canadian government punishing him for the sins of his family.”

It was a bravura performance. One day, when all this is over, I expect that Kuebler and his fellow JAG lawyers –- in particular, Michael Mori, who struggled long and hard to repatriate David Hicks to Australia, and Charlie Swift, who fought a principled, career-destroying battle for another detainee, Salim Hamdan –- will be heroes in a Hollywood version of their story. For now, however, it remains to be seen if Bill Kuebler has persuaded the Canadian government of its hypocrisy in standing up for the rights of other child soldiers around the world, while singularly failing one of its own.

[Note: For more on the story of Omar Khadr and his family, see my book, The Guantánamo Files. I could tell you some heartbreaking tales of Omar’s experiences as a lost and lonely child in Guantánamo, but that would be a betrayal of trust: I was told them by Toronto Star reporter Michelle Shephard, and they feature in her book on Omar, Guantánamo’s Child, which will be published next year. For an extensive article by William Kuebler about the injustices of the Military Commission system, click here].