WASHINGTON — A federal judge has dismissed more than 100 habeas corpus lawsuits filed by former Guantanamo captives, ruling that because the Bush and Obama administrations had transferred them elsewhere, the courts need not decide whether the Pentagon imprisoned them illegally.

The ruling dismayed attorneys for some of the detainees who’d hoped any favorable U.S. court findings would help clear their clients of the stigma, travel restrictions and, in some instances, perhaps more jail time that resulted from their stay at Guantanamo.

U.S. District Judge Thomas F. Hogan wrote that he was “not unsympathetic” to the former detainees’ plight. “Detention for any length of time can be injurious. And certainly associations with Guantanamo tend to be negative,” he wrote.

But the detainees’ transfer from Guantanamo made their cases moot. “The court finds that petitioners no longer present a live case or controversy since a federal court cannot remedy the alleged collateral consequences of their prior detention at Guantanamo,” he wrote.

Hogan’s ruling, issued last Thursday, but not widely publicized, closed the files on 105 habeas corpus petitions, many of which had been pending for years as the Bush administration resisted the right of civilian judges to intervene in military detentions. The U.S. Supreme Court resolved that issue in 2008, ruling in Boumediene v. Bush that the detainees could challenge their captivity in civilian court. Since then, judges have ordered the release of 34 detainees while upholding the detention of 12.

Attorneys for the ex-detainees were deciding Monday whether to appeal the ruling to the U.S. Court of Appeals for the District of Columbia, said Shayana Kadidal, an attorney at New York’s Center for Constitutional Rights, which has taken the lead in championing Guantanamo habeas petitions.

The former prisoners who’d filed the dismissed suits ranged from “people who disappeared in Libyan prison to people who are home living with their family and can’t get a job,” Kadidal said.

The “vast, vast majority” of former Guantanamo prisoners are under some form of travel restriction, he said, as a result of either transfer agreements between the United States and where they now live or the stigma of having spent time in U.S. military custody.

“If you want to do haj at some point in your life,” he said, referring to a Muslim’s duty to make a pilgrimage to Mecca, a freed detainee would need to get those restrictions lifted.

Moreover, he added, CCR affiliated attorneys have tracked former captives to prison at Pol-i-charki, Afghanistan, that was once run by the U.S. military. He said “the U.S. may be pulling the puppet strings” of their continued captivity.

In the case of two men sent home to Sudan, according to an affidavit filed by an investigator with the Oregon Federal Public Defender’s office, which is representing them, the United States required as a condition for their release that Sudan seize their travel documents and prevent them from leaving the country.

Hogan said the attorneys for the former detainees hadn’t offered enough proof that other countries were operating essentially as U.S. proxies. “Petitioners are short on examples, except for the fact that former Guantanamo detainees from Afghanistan transferred back to Afghanistan have been detained at a detention facility built by the United States,” he wrote.

Of the 183 men currently held at Guantanamo, 22 have had their habeas cases resolved — 10 who were ordered released, but are still being held and the 12 whose detentions were upheld.

It was unclear, however, how many of the other 161 might have cases pending. Some detainees have refused American lawyers’ offers to sue on their behalf, apparently rejecting the authority of any U.S. court to sit in judgment on them. An Obama administration panel has determined that about 50 of those should be held indefinitely without charges.  Source

This of course is American Justice.  No Justice at all.

In 2001, Charles Krauthammer first coined the phrase “Bush Doctrine”, which would later become associated most significantly with the legal anomaly known as pre-emptive strike. Understanding the doctrine with hindsight could lead to a further understanding of the legacy that the former administration left – the choice to place concerns of national security over even the most entrenched norms of due process and the rule of law. It is, indeed, this doctrine that united people across the world in their condemnation of Guantánamo Bay.

The ambitious desire to close Guantánamo hailed the coming of a new era, a feeling implicitly recognised by the Nobel peace prize that President Obama received. Unfortunately, what we witnessed was a false dawn. The lawyers for the Guantánamo detainees with whom I am in touch in the US speak of their dismay as they prepare for Obama to do the one thing they never expected – to send the detainees back to the military commissions – a decision that will lose Obama all support he once had within the human rights community.

Worse still, a completely new trend has emerged that, in many ways, is more dangerous than the trends under Bush. Extrajudicial killings and targeted assassinations will soon become the main point of contention that Obama’s administration will need to justify. Although Bush was known for his support for such policies, the extensive use of drones under Obama have taken the death count well beyond anything that has been seen before.

Harold Koh, the legal adviser to the US state department, explained the justifications behind unmanned aerial vehicles (UAVs) when addressing the American Society of International Law’s annual meeting on 25 March 2010:

“[I]t is the considered view of this administration … that targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles (UAVs), comply with all applicable law, including the laws of war … As recent events have shown, al-Qaida has not abandoned its intent to attack the United States, and indeed continues to attack us. Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al Qaeda leaders who are planning attacks … [T]his administration has carefully reviewed the rules governing targeting operations to ensure that these operations are conducted consistently with law of war principles … “[S]ome have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force. Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise. In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meeting. They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law.”

The legal justifications put forward by Koh are reminiscent of the arguments that were used by John Yoo and others in their bid to lend legitimacy to unlawful practices such as rendition, arbitrary detention and torture. The main cause for concern from Koh’s statements is the implication that protective jurisdiction to which the US feels it is entitled in order to carry out operations anywhere in the world still continues under Obama. The laws of war do not allow for the targeting of individuals outside of the conflict zone, and yet we now find that extrajudicial killings are taking place in countries as far apart as Yemen, the Horn of Africa and Pakistan. From a legal and moral perspective, the rationale provided by the State Department is bankrupt and only reinforces the stereotype that the US has very little concern for its own principles.

Despite the legalities of what is being conducted, the actuality of extrajudicial killings, especially through UAVs is frightening. The recent revelations by WikiLeaks on the killing of civilians by US Apache helicopters in Iraq has strongly highlighted the opportunities for misuse surrounding targeting from the air. In the Iraq case, there were soldiers who were supposed to be using the equipment to identify so-called combatants, and yet they still managed to catastrophically target the wrong people. This situation is made even worse in the case of UAVs, where the operators are far removed from the reality of the conflict and rely on digital images to see what is taking place on the ground.

Conservative estimates from thinktanks such as the New American Foundation claim that civilian causalities from drone attacks are around one in three, although this figure is disputed by the Pakistani authorities. According to Pakistani official statistics, every month an average of 58 civilians were killed during 2009. Of the 44 Predator drone attacks that year, only five targets were correctly identified; the result was over 700 civilian casualties.

Regardless of the figures used, the case that extrajudicial killings are justified is extremely weak, and the number of civilian casualties is far too high to justify their continued use.

A further twist to the Obama Doctrine is the breaking of a taboo that the Bush administration balked at – the concept of treating US citizens outside of the US constitutional process. During the Bush era, the treatment of detainees such as John Walker Lindh, Yasser Hamdi and Jose Padilla showed reluctance by officials to treat their own nationals in the way it had all those of other nationalities (by, for instance, sending them to Guantánamo Bay and other secret prisons). The policy of discrimination reserved for US citizens showed that there was a line the US was not willing to cross.

At least, today, we can strike discrimination off the list of grievances against the current president. The National Security Council of the US has now given specific permission to the CIA to target certain US citizens as part of counter-terrorism operations. Specifically, Anwar al-Awlaki has been singled out for such treatment, as it has been claimed that he was directly involved in the planning of the Major Hasan Nidal killings and the Christmas Day bomber attacks. Indeed, it is claims such as this that bring the entire concept of targeted assassinations into question. The US would like us to believe that we should simply trust that they have the relevant evidence and information to justify such a killing, without bringing the individual to account before a court.

The assumption that trust should be extended to a government that has involved itself in innumerable unlawful and unconscionable practices since the start of the war on terror is too much to ask. Whatever goodwill the US government had after 9/11 was destroyed by the way in which it prosecuted its wars. Further, the hope that came with the election of Barack Obama has faded as his policies have indicated nothing more than a reconfiguration of the basic tenet of the Bush Doctrine – that the US’s national security interests supersede any consideration of due process or the rule of law. The only difference – witness the rising civilian body count from drone attacks – being that Obama’s doctrine is even more deadly.

Panelists: Col. Morris Davis (U.S. Air Force, Ret.), Joshua Dratel, and Anthony Romero

The audio from this event will be posted shortly.

Video of the entire discussion is available on C-Span.

Excerpts:

Joshua Dratel: There is, I think, a mythology as to the advantages of military commissions. … I don’t know whether it’s based on a lack of education about how the federal system operates or just a denial of how the federal system operates. [It] is the question of secrecy and intelligence information. The federal courts have a statute – the Classified Information Procedures Act (we call it “CIPA”) – that

Anthony Romero, Joshua Dratel, and Karen Greenberg

controls the use of classified information in federal criminal cases. The courts have a perfect record in preserving classified information through use of the statute. There is no danger that a terrorist is going to come into possession of that information, because they don’t have security clearances. No defendant in these cases has a security clearance. Only their lawyers have security clearances, and their lawyers are permitted to review these materials based on their promise, essentially their agreement, to keep them confidential and only among lawyers. That is what has occurred in dozens and dozens of cases, both terrorism and non-terrorism cases….

***

That’s just one of the mythologies. Another is that the military commissions will be faster. Here we are, six years later, with three convictions. … These cases will drag on for so much longer than the closure that could be provided by a federal criminal trial, which does not have the issues of fundamental legitimacy that are challenged in the commissions and will continue to be challenged.

***

Morris Davis: I think one area where I probably have disagreement with my co-panelists [is that] I don’t believe [the detainees] have constitutional rights. My view is if your only connection to the Constitution is a desire to destroy it, then you don’t get the benefits of the Constitution. I do think they have rights under Common Article Three of the Geneva Conventions…. There’s a lot of talk about the common article and the common law and there is an absence in my view of common sense. To me, that was always kind of the touchstone. What if the shoe was on the other foot? What rules would we accept if it was an American, no matter how bad they were or how stupid their activity? Would we condone it if the shoe was on the other foot?

***

I think you have to remember, too, that Guantanamo Bay – people weren’t taken there with a view towards prosecution. They were taken there to be exploited for intelligence purposes. … If you look at the recent “underwear bomber,” he was immediately taken into FBI custody, advised of his rights, there was chain of custody on the evidence. All those things were lacking in the cases at Guantanamo Bay. There were no rights advisements, there is little if any chain of custody, there were some very enhanced interrogation techniques that were employed – a lot of things that I think would cause some real fundamental problems in a trial in federal court.

Morris Davis

So that’s why the Bush administration worked really hard to come up with this “unlawful alien enemy combatant” designation – some way that could distinguish these guys from prisoners of war. Because if they are POWs under Common Article Three, they are entitled to a court martial. If you look at the rules for courts martial and the federal rules, they are almost identical, so the problems you’d have in federal court you would have in a court martial. So they had to be creative and come up with another classification that could get around having to extend those rights, and that’s where we came up with this “alien unlawful enemy combatants.”

***

I think you can have a fair trial in either forum. …. In my view, having spent two years immersed in the evidence, there is ample evidence to prove the guilt of the three people that were waterboarded without using anything they ever said while they were in our custody. So this whole push to try to introduce that evidence, in my view, is totally unnecessary. We could have the trial without using that evidence and, I believe, secure a conviction. I also believe [that] if you accept that this is war, and it’s probably an unpopular view, but if they are acquitted, as long as they are still an enemy combatant, they can still be detained to keep them off the battlefield.

***

Anthony Romero: Ultimately the reason why the military commission, Moe, would be an enormous mistake, just as a rejoinder, [is that] it’s going to be the exception that eats up the rule, meaning the Fourth and Fifth Amendments. I also am not given to prognostication. I know that these types of situations will turn up in organized crime, gangs, [and] the drug war. We’ve seen it with the Patriot Act. ….  You look at the annual report put out by Department of Justice on how the Patriot Act powers were used, right in the aftermath of 9/11, one month after the attacks of 9/11. It’s used on lottery crimes, embezzlement, people who were extorting the

Anthony Romero

elderly, environmental terrorism, immigration. I guarantee you that if you allow a context where you can convict individuals with hearsay evidence, with coerced evidence, [where] you can hold individuals preventively without charges or trial, then you are going to find yourself in a situation where that exception becomes the rule of law and eats up what are very clear barriers for due process in the Fourth and Fifth Amendments that will do enormous damage for the country.

That’s why this issue is of such high importance for us. People keep saying to me, and I’ll wrap up with this, “Why do you spend so much time focusing on these 200 individuals?” …. The implications for us going forward are not to be underestimated. That’s why, frankly, the idea that we’re dealing with potentially carving out enormous exceptions in our established justice system because of the realpolitik of Washington is just incredibly frightening, and why the questions and comments from across the political spectrum have to be as loud and as vociferous as possible, regardless of where we end up.

***

Morris Davis: One of the things that really concerns me about having these two different systems [is that] one of the criteria that they came up with to evaluate which forum the cases would go to is which forum would allow for the best presentation of evidence, or words to that effect. So … basically what they were saying is, let’s take a look at the evidence and see what bar it will clear. If it’ll clear the high bar, then let’s give them a full-blown trial in federal court and feel good about giving them a full measure of justice. But if the evidence won’t clear that bar, then we’ll fall back on a military commission. That’s exactly what they’ve done – vet the cases and determine how high the evidence will jump, and that’s what picks the forum, which I think is just fundamentally wrong.

I think where we prosecute these cases is a fairly easy question compared to the larger number of people we have no intention of ever prosecuting and never releasing and what their rights [are]. That to me is the more difficult question.

***

Joshua Dratel: I do not oppose a properly constituted military commission to try war crimes. I think that what we have now is a situation that is too toxic in the context of what these military commissions are, and they also don’t meet the standards that, at least for myself in 30 years of litigating, [I] have come to believe provide a reliable, fair, accurate adjudication of [guilty] or [not guilty]. I don’t think the military commissions are there. Could there be a military commission system? Yeah. The UCMJ provides that system. We have never argued that the UCMJ, as it constituted presently, would not provide a fair trial ….

The event handout, including participant bios, is available here: Obama&the911TrialsHandout

The rush (unproofed) transcript is available here: Obama&the911TrialsRushTranscript

Photos by Dan Creighton (www.dancreighton.com)

Liz Cheney and her colleagues at Keep America Scared just don’t get it.  Instead of embarking on a multifaceted, coordinated, and orchestrated campaign excoriating lawyers who have represented Guantanamo Bay detainees and others facing terrorism charges, she should be thanking them.  For those lawyers saved people like her daddy from themselves.  Without those lawyers to apply the brakes to the Bush-Cheney program, who knows what would have ensued?

Perhaps John Yoo would have been writing legal memos providing a post hoc rationalization for the massacre of towns like Amherst, Massachusetts, which offered to house the Uighurs whom the courts ordered released from Guantanamo, but for whom the U.S. could not find a home abroad.

That’s no joke.  The OPR’s “Investigation Into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of ‘Enhanced Interrogation Techniques’ on Suspected Terrorists” report that I discussed previously contains a chilling passage from OPR’s interview of Yoo. Here, at page 64, is the excerpt (with the ellipses and brackets in the original, other than the first ellipses):

. . .  Yoo was asked to explain how the torture statute would interfere with the President’s war making abilities, and gave the following answers:

Q:    I guess the question I’m raising is, does this particular law really affect the President’s war-making abilities …

A:     Yes, certainly.

Q:    What is your authority for that?

A:    Because this is an option the President might use in war.

Q:     What about ordering a village of resistants to be massacred? . . .  Is that a power that the President could legally –

A:     Yeah.  Although let me say this.  So, certainly that would fall within the Commander-in-Chief’s power over tactical decisions.

Q:     To order a village of civilians to be [exterminated]?

A:     Sure.

Imagine the calls for an independent commission after that one!  And who knows what else would have befallen those in government?  Like all other nations that completely abandon the rule of law in favor of autocracy, and who eliminate all legal forms of resistance, soon enough the Bush administration would have been ripe for a coup.  The shelf life of Latin American and African dictatorships is instructive in that regard.  Assuming Dick Cheney survived, most likely afterwards the new government would have nationalized the oil companies and banks, and even Halliburton.

The short-sighted criticism of “terrorism lawyers” reminds me of the equally myopic attacks regularly leveled against plaintiffs’ lawyers by, well, pretty much the same crowd (i.e., The Wall Street Journal, et al.). What do these oligarchs think stands between financial collapse, or continued bureaucratic insensitivity, or dangerous products, and a French-revolution like paroxysm of popular rage?  Civilization?  Hah!  It’s plaintiffs’ lawyers.  Without recourse to the courts for their investment losses, or injuries from defective products, or frustration at bureaucratic capriciousness, I pretty well suspect that mobs would be roaming the street looking for derivatives traders or Toyota salesmen, or vice presidents, to tar and feather.  So confront the uncomfortable fact (because, as a career defense attorney, I don’t exactly have a warm and fuzzy spot for plaintiffs’ lawyers, either):  Plaintiffs’ lawyers are the salvation of under-regulated capitalism.  Because of them and their wiles, people don’t riot, they sue.

But I digress (although isn’t that what blogs are for? Besides, the prospect of civil unrest in the absence of plaintiffs’ lawyers is indeed a matter of law and security, no?).  Just to demonstrate my evenhandedness, let’s reciprocate, and thank Liz Cheney even if she doesn’t thank her fellow members of the bar.  Her descent into neo-McCarthyism has reminded us, after the distraction of the whole legalistic hoo-hah over Yoo’s shoddy legal reasoning and “poor judgment,” just what the Bush administration, spearheaded by her dad, had in mind:  like the outlaw in opening episode of the HBO series Deadwood blurts wistfully from behind bars, a land “with no law at all.”

Of course, eliminating lawyers goes a long way towards that objective. I’m only surprised that Liz Cheney, like so many others who denigrate lawyers, has not yet quoted Shakespeare to legitimize her position.  After all, how many times have we heard the line from the second part of Henry VI, “The first thing we do, let’s kill all the lawyers,” invoked?  Of course, the character who delivers that line, Dick the Butcher, is the villain in the drama, described in Shakespeare for Lawyers as “a plotter of treachery . . . discussing how they will start the war and begin oppression of the people by taking away their property and individual liberty,” but why let facts get in the way?  Because, as John Adams reminded the jury in his defense of Captain Preston, commander of the British troops responsible for the Boston Massacre, “facts are stubborn things . . . .”

Ah, back to John Adams, who could be as paranoid as anyone about national security and dissent (remember those pesky Alien and Sedition Acts?), but who characterized his defense of Captain Preston as “one of the best pieces of service I ever rendered my country.”  He said a lot more about it – I only wish he could write an Op-Ed about this nonsense – and Jay Bookman’s blog has provided some choice passages.

That’s why the ACLU and NACDL named their joint commitment to provide civilian lawyers to the 14 “high-value detainees” at Guantanamo “The John Adams Project.” And why, for those lawyers, their service in that capacity is the finest and most valuable they have performed for their country.

copyright © 2010 by Joshua L. Dratel

Concentration camp ‘Guantanamo’ – Kavkazcenter.com.

When three young prisoners died in June 2006 in the American concentration camp of Guantanamo, the cause of death was officially declared as a suicide. Now the journalistic investigation conducted by Harper’s based on the disclosing testimony of former prison guards puts the official version into question.

The information received by magazine suggests that the prisoner hostages – a 37-year-old Yemeni and two 30- and 22 year-old Saudis – were tortured to death during an interrogation.

The matter was hushed up, the perpetrators did not receive any punishment, and the internal investigation confirmed suicide claim.

Harper’s wrote that the crimes were most likely committed in a certain sensitive site called” by the guards at the Guantanamo Bay, the very existence of which had been denied.

The prisoners were moved there in a special van, and contrary to usual prison rules, the transfer was not registered in prison files.

The disclosure of information about this camp is in itself an important result of the journalistic investigation.

The article in Harper’s tells about the events that took place under the previous Republican administration of George W. Bush in the United States. However, it may cast a shadow on the current Democratic “team” of Barack Obama, especially if it turns out that it “did not conduct a serious inquiry – and perhaps even continues to protect – the possible murder of the three detainees in Guantanamo in 2006″, the magazine says.

The magazine reminds that Obama has not kept his campaign promise to close the Guantanamo concentration camp within a year where the US authorities brought captured and abducted prisoners from every corner of the globe.

The article in Harper’s immediately provoked indignant reaction from the American human rights groups. The organization “Evidence Against Torture” held a symbolic vigil protest at the entrance to the Pentagon on Tuesday morning, January 19, and organized a similar rally at the White House on Tuesday night.

It calls for a thorough independent investigation of the facts contained in the article.

Department of Monitoring,

Kavkaz Center

Leading human rights organizations have urged more European states to accept detainees held at the US detention centre at Guantánamo who cannot be returned to their countries of origin for fear of torture or other human rights violations.

On the eighth anniversary of the first transfers to Guantánamo, the organisations urged other countries, including Germany, Finland, Sweden and Luxembourg to do more to aid the transfer of roughly 50 such men who remain trapped after years of unlawful detention.

Continues >>

By Susan Crabtree – 01/08/10 05:57 PM ET

The Obama administration’s plans to transfer two more Guantanamo Bay detainees overseas in the wake of the Christmas Day bombing attempt is causing consternation on Capitol Hill.

Just days before the near takedown of a passenger jet over Detroit, the State Department notified Congress Dec. 22 of its plans to transfer two more detainees overseas, according to a Senate e-mail notification obtained by The Hill.

Because of the holiday congressional recess some key members of Congress only became aware of the plan to transfer the additional detainees late this week and are calling for the White House to freeze the transfer of the pair, as well as all detainees in the Guantanamo detention facility, until the entire repatriation process can be reviewed.

“We continue to send people back to countries that have weak central governments and ungoverned areas,” said Rep. Pete Hoekstra (R-Mich.), the ranking member of the House intelligence committee. “It baffles the brain.”

Hoekstra is concerned about just one of the two latest detainees set for transfer. The other, he said, is going to a country “of no concern.” He would not disclose the countries or the names of the detainees because the material is classified.

A spokesman for Sen. Jeff Sessions (R-Ala.), the ranking member of the Judiciary Committee, also decried the decision to continue releasing detainees in the wake of the bombing attempt.

via Plans to transfer two Guantanamo detainees overseas raise concern – TheHill.com.

Twelve inmates have been transferred from the U.S. military prison at Guantanamo Bay, Cuba, to Afghanistan, Yemen and the breakaway Somali enclave of Somaliland, the U.S. Justice Department said on Sunday.

Six Yemeni and four Afghan detainees were sent over the weekend to their home countries while two Somalis were transferred to regional authorities in Somaliland, an self-governing region within Somalia, the department said.

The transfers are the latest from the controversial prison President Barack Obama has pledged to close next month, but that deadline will likely be missed because of diplomatic and political hurdles…

What a wonderful gift to terrorists everywhere all around the world. Just in time for the holidays!

Here is another story of a terrorist Obama sent home to Afghanistan:

Mohammed Jawad was accused of throwing a grenade that injured two U.S. soldiers and their interpreter in Kabul in 2002. Jawad, one of the youngest prisoners held at the facility, was now with his family in Kabul, according to his lawyer Air Force Major David Frakt.
Mr. Jawad was seen by an Afghan policeman throwing the grenade at the US soldiers, killing one and wounding another and their interpreter.
Mr. Jawad’s partner was grabbed while in the process of throwing another grenade.
And, Mr. Jawad had two more grenades on his person at the time of his arrest.
Lastly, as we have also already noted, Mr. Jawad confessed to his crimes at least twice – once to the Afghan police and then to the US authorities.
There has been no suggestion that the Americans tortured him.
But never mind all of that.
One of the themes of the Obama regime seems to be ‘guilty as hell, free as a bird.’
Of course this is exactly what one should expect from a Justice Department headed by someone (Eric Holder) whose law firm defended Guantanamo Detainees

Now this man, Jawad, is suing the U.S. Government and he is being backed by Afghan President Karzai!

RWD