Video: Todd Pierce Discusses the Lawlessness of Guantánamo’s Military Commissions on “London Real”

3.7.14

I’ve been meaning for some time to post a video of my friend Todd Pierce, a retired major in the US Army JAG (Judge Advocate General) Corps, being interviewed on the “London Real” show run by US ex-pat — and former banker — Brian Rose.

Todd retired from the US military in November 2012, but he had previously been involved in representing two prisoners charged in the military commissions at Guantánamo, which, for prosecuting alleged war criminals in the “war on terror,” were revived by the Bush administration in November 2001 based on their use on would-be Nazi saboteurs in World War II. They were then ruled illegal by the Supreme Court in June 2006, revived again by Congress in the fall of 2006, and revived again under President Obama in 2009.

Todd was part of the legal team for Ibrahim al-Qosi, from Sudan, who accepted a plea deal and was freed in July 2012, and Ali Hamza al-Bahlul, who refused all representation, and was given a life sentence in November 2008 after a disgraceful one-sided trial. Ironically, al-Bahlul is one of two prisoners (along with Salim Hamdan) who shook the tattered credibility of the commissions in October 2012 and January 2013, when the appeals court in Washington D.C. threw out the convictions against both men on the basis that the alleged war crimes for which they had been convicted were not war crimes at all, and had been invented by Congress. In al-Bahlul’s case, the government has appealed, but a ruling has not yet been delivered, and he remains held.

Todd and I have been friends for some time. He introduced me to several defense attorneys for the Guantánamo prisoners, and we have spent time together in New York, Washington D.C. and London. In January, I took part in a couple of events with him during my US tour to mark the 12th anniversary of the opening of Guantánamo, and videos of one of those events, in New York, are available here.

Todd recorded the “London Real” show in February, while he was visiting the UK as part of the presentation to Chelsea Manning (via his old school friend Aaron Kirkhouse) of the Sam Adams Associates Award for Integrity in Intelligence at the Oxford Union (see my post here and my photos here), but it was not made available until May. I’m posting it now because it seems appropriate — on the eve of the Independence Day in the US — to listen to Todd talk about the lawlessness of the military commission system set up at Guantánamo to try alleged terrorist suspects seized in the Bush administration’s “war on terror.”

The interview starts about nine minutes in, and I hope you have time to watch it, as Todd is extremely knowledgable about the history of the military commissions, having researched and reviewed the complete records of the military commissions held during the Civil War, which are stored at the National Archives in Washington D.C., during his time as a defense attorney in the military commissions.

One of the themes Todd uncovered involved the Bush administration’s belief in the “unitary executive theory” — the belief, as Todd described it in 2010, that “if the president did something, it could not be illegal — the dictator’s prerogative.” The “unitary executive theory” was particularly beloved by Vice President Dick Cheney and his advisors, including David Addington, John Yoo and Robert Delahunty, but as Todd explains, it’s important for people to know that “these ideas were actually legal theories expounded by Carl Schmitt, the Nazi ‘Crown Jurist’ of the 1930s.” For more on this, see, “US Military Attorney Compares Rationale for “War on Terror” to Nazi Ideology,” an article by Todd, with my own introduction, which I cross-posted on my site in January 2012.

Todd has since developed a detailed explanation of how, in response to challenges to the legal rationale for the commissions, the authorities have ended up in the ludicrous position of trying to justify the commissions by referring back to the Civil War and the use of military commissions in a domestic context — in particular, how they were used to punish domestic dissent or treason. As Todd explained it to me, this has led to a situation where the commissions are justified on the basis of Civil War rulings involving Americans being unpatriotic — a situation that cannot, of course, be extended to non-Americans held at Guantánamo, who never owed any kind of allegiance to the US in the first place.

There is much more in the show — including Todd’s own detailed history of Guantánamo, discussions of Edward Snowden, the NSA and President Obama’s drone program. I do hope you have time to watch the show, and to share it if you find it useful.

This was how Brian described the show:

Todd Pierce knows a lot about the Guantánamo Detention Camp. As a Major with the US Army Judge Advocate General Corp his job was to defend three of the detainees at Guantánamo Bay and he considers indefinite detention a form of torture.

Todd is also a military historian and believes that George W. Bush’s famous quote “You are either with us or against us” made the USA a de facto Authoritarian government. He claims that Bush and Cheney turned to Civil War precedents to create military tribunals for trying alleged “terrorists.”

Furthermore he believes that Edward Snowden’s revelations of the unrestricted access to information by those who govern us severely restricts the way a fair society can function. He has unique insights on the problems of the NSA, unmanned drone strike policy, and the arcane law know as the Espionage Act of 1917.

Join me in welcoming Todd Pierce for a critically important episode of London Real.

Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and “The Complete Guantánamo Files,” an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the “Close Guantánamo” campaign, and, if you appreciate Andy’s work, feel free to make a donation.

Posted in Ali Hamza al-Bahlul, Guantanamo, Guantanamo lawyers, Guantanamo media, Ibrahim al-Qosi, Military Commissions Tagged Ali Hamza al-Bahlul, Close Guantanamo, David Addington, Dick Cheney, Ibrahim al-Qosi, John Yoo, London Real, Military Commission, Robert Delahunty, Todd Pierce, Video
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8 Responses

Andy Worthington says...

On Facebook, Pauline Kiernan wrote:

Thank you Andy. Sharing Px

...on July 3rd, 2014 at 11:05 pm
Andy Worthington says...

Thanks, Pauline. Todd is a star and I’m delighted to make his deep and considered analysis available.

...on July 3rd, 2014 at 11:05 pm
Andy Worthington says...

Kim Chi wrote:

Happy Ramadan.

...on July 3rd, 2014 at 11:24 pm
Andy Worthington says...

Yes, Ramadan doesn’t often coincide with the US Independence Day, Kim. Tomorrow President Obama should announce that he’s releasing all the prisoners that his advisers told him should no longer be held back in January 2010 (75 of them) and the three others cleared for release in recent months by Periodic Review Boards.
Some days I feel more foolishly hopeful than others. He won’t do it, of course, but he should!

...on July 3rd, 2014 at 11:25 pm
arcticredriver says...

Andy, you have probably seen that professional alarmists are asserting al Qosi appeared in an AQAP video. I find those guys willing to jump at any rumor that allows them to escalate the public’s alarm, but they never report on any factors that should erode alarm.

Anyhow, there was something I noticed about six months ago, about one of those convicted by a military commission, who had been released… As I recall, every former captive who had been convicted of “providing material support for terrorism” has to have someone file an official motion to have that conviction thrown out. If a former captive can’t be found the conviction stands. The last former lawyer for this former captive said they hadn’t kept in touch, so he didn’t have standing to file a motion to throw out his conviction.

Did you see that report? If so, was it al Qosi?

With regard to footage of him being included in an AQAP video, we may learn that AQAP copied footage from legitimate journalists, and edited it to misleading represent him as a supporter.

...on December 14th, 2015 at 1:04 am
Andy Worthington says...

Thanks, arcticredriver. I seem to recall reading something about how al-Qsi couldn’t be located, so it was probably him.
As for this latest news, it seems to be true, although it also seems that he’s a religious advisor and not any kind of soldier. People should recall two things: (a) how much former prisoners are sought out by opponents of the US because of what happened to them, and (b) how, in general, former prisoners have no money and find it difficult to secure paid work. The two could be connected …

...on December 14th, 2015 at 7:38 am
arcticredriver says...

More news, or maybe I should call it “news”, on al Qosi. My google news alert on him brought me to the site “Liberty news now” that wrote an article entitled Osama Bin Laden’s Personal Body Guard Freed, Returns To Jihad

I have several difficulty with the opinions expressed there. I wrote that, in the best of my knowledge, there was nothing made public that would substantiate assertions he had “rejoined” al Qaeda. If the video included footage of al Qosi from broadcasts of interviews conducted by regular journalists that doesn’t mean he rejoined al Qaeda.

Anyhow, the site may not publish my comment, in their comment section, since it is at odds with their position. With your permission I am going to take the liberty of cross-posting it here.

Al Qosi was convicted — but of a charge that civilian appeals courts concluded were not legitimate charges, accusations that did not violate a genuine law. After the charge had been thrown out in one appeal, all the other men convicted of “material support of terrorism” had to do was request their conviction be over-turned, as well.

Several years ago al Qosi’s lawyer, from his Military Commission, requested his conviction also be overturned. But the Court of Military Commission Review (CMCR), a military outfit, set up solely to rule on Military Commission matters, ruled she had not established that she still had a lawyer-client relationship with al-Qosi, and so wasn’t authorized to appeal his conviction.

She then requested travel funds, from the court, to travel to Sudan, to secure that authorization. The CMCR refused those travel funds.

Overturning his initial conviction would have been just a formality, if the Court had heard his appeal, since a higher court had already determined the charge was not a genuine crime.

This took place at least a year before some al Qaeda videographer included footage of al Qosi in an al Qaeda video. Note: being included in an al Qaeda video does not make one a supporter of al Qaeda’s current activities. The videographer may have used clips from a regular TV interview, and edited them to imply views al Qosi doesn’t hold.

Suppose, for the sake of argument, the footage of him in the video was not deceptive, I suggest that, for all we know, he was on the cusp of keeping his mouth shut, and not saying anything that could be considered supportive of al Qaeda’s current operations — when he heard the CMCR made the decision to impede turning over his conviction, when doing so should have been a mere formality.

You wrote that al Qosi “rejoined the terrorist group”. But did he? So far the only information that is in the public domain is that an al Qaeda video included footage of him, and that he paid a visit to Yemen. There is, to the best of my knowledge, nothing in the public domain to substantiate assertions he actually rejoined al Qaeda.

You wrote that he was released by the Obama administration. Okay, to what extent was his Military Commission a real court? Convicted murderers, convicted rapists, who finish serving the sentences handed down to them in the regular civilian or military justice systems are released every day. Do we say the convicts released after serving their sentences since Donald Trump’s inauguration were “released by the Trump administration”? Absolutely not.

Trump heads the Executive Branch, sentencing is the responsibility of the Judicial Branch.

To say the Obama administration was responsible for his release is to suggest that, once he served his sentence, the Obama administration should have stepped in, and said, “We don’t care he served his sentence. We don’t care that he has been a model prisoner. We are going to keep him.”

Why have any trials at all, if the President is going to over-rule the sentencing, once someone has served their time?

...on July 22nd, 2017 at 10:38 pm
Andy Worthington says...

Thanks for sharing your comments here, arcticredriver. You raise some very valid points about al-Qosi’s case, and how it has been presented in the media.

...on July 23rd, 2017 at 4:42 pm