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Roger Fitch Esq
7 December, 2007  
Our Man in Washington

“Legal” developments at Guantanamo Bay … The Supreme Court messes with the Military Commissions … Bush’s policy of “what you don’t know can’t hurt us” starts to unravel … The administration’s efforts at subverting the Geneva Conventions brings on a rambling legal mess


image”The Supreme Court Faces the Kangaroo Courts”.

That’s the headline on an article in FindLaw’s Writ by Joanne Mariner apropos the oral arguments in Boumediene/Al Odah, the blockbuster cases on detainee treatment heard on Wednesday (Dec. 5).

You can listen to tapes of the hearing (scroll down the page a bit) and Scotusblog also has links to the briefs and arguments.

The Wall Street Journal backgrounds the cases with a discussion of the 1992 US District Court ruling that the constitution applied to Haitian refugees sent to Guantanamo by Bush the Elder.

The National Law Journal also carries more.

The Al Odah case is the latest iteration of the companion case to Rasul (David Hicks) decided in 2004. David Cynamon, the lawyer representing the Al Odah petitioners (Kuwaitis), discussed the case in The Washington Post.

The Boumediene case presents quite different facts. The six Bosnian-Algerian petitioners were arrested in Bosnia, investigated and cleared by the Bosnian government and ordered released by its supreme court.

Nevertheless, the men ended up in Guantanamo. Mother Jones Magazine has more.

The US accuses the men of wanting to bomb the US embassy in Sarajevo, an act which seems unrelated to September 11 or the war in Afghanistan.

It is a connection to these, however, that the US Supreme Court in 2004 found was necessary for Congress’s “Authorisation to Use Military Force” to have any effect. Only the AUMF gives the President his authority to capture and detain.

When Rasul and Al Odah were decided in June 2004, it was assumed the detainees would proceed to have the habeas cases the Supreme Court said they could have in Washington DC.

However, the Hamdi case decided the same day suggested that something short of a DC district court might suffice to determine combat status, and so the sham Combat Status Review Tribunals were born.

The Boumediene case is about these administrative courts, never authorised by Congress, that the Pentagon set up to avoid both DC habeas hearings and existing US military law and regulations that govern the treatment of captured enemy soldiers.

Though still on the books, that body of statutory law can’t be used because it follows the Geneva Conventions and the law of war. It protects prisoners from coercive interrogation, mistreatment and substandard trials, the very things the government wants.

* * *

imageThere are other kangaroo courts, authorised by Congress in the Military Commissions Act 2006. These are used to charge, as so-called war criminals, fighters who kill or injure Americans (e.g. Omar Khadr) or civilians who may oppose Americans and are, if anything, ordinary criminals (e.g. bin Ladin’s driver, Salim Hamdan).

The MCA has only been used once, to convict David Hicks of “material support for terrorism”.

That not one of these is a valid war crime under the Geneva Conventions is of no moment to the Bush administration.

Instead, the State Department is busy campaigning to retrospectively redefine the Conventions so as to protect US officials themselves from war crimes charges – for bringing fake, substandard “war crime” prosecutions.

Three men are facing trial in the “big” kangaroo courts, i.e. military commissions: the Canadian Khadr, the Yemeni Hamdan (who was arraigned on Wednesday Dec. 5) and an Afghan, Mohammad Jawad.

By the day of Khadr’s arraignment (Nov. 8) his US lawyers had been dismissed and the Canadian lawyers had fallen out with his military counsel.

As the judge, Army Col. Peter Brownback, noted, the arraignment was three years to the day since he had been stopped mid-hearing in David Hicks’ case by a DC District Court stay issued in Hamdan’s case.

Observers reported Khadr’s arraignment here and here.

As it turned out, the matter was adjourned without determining the jurisdictional question – whether Khadr’s alleged combatant status was unlawful – and with the revelation that the Pentagon had suddenly “discovered” potentially exculpatory evidence.

A newly disclosed order by Brownback reveals that the identities of witnesses may be kept secret from Khadr when the trial takes place.

Finding this out was not easy. In line with the Bush administration’s general policy that what you don’t know can’t hurt us, the Pentagon has been refusing to inform the media or public about Guantanamo “legal” developments.

Under the old “presidential” military commissions, the motions and orders were promptly posted on the internet, where they can still be read.

Now, however, the government prefers private email transmissions to court filings. And they send blind copies to whomever they please, including presumably the White House.

imageThis lack of access to filings in the military commissions was the subject of a complaint by the major news organisations, leading to the release of 694 pages of emails, motions and orders in the Khadr case, and the transcript of the November arraignment.

In his response earlier this year to the government’s motion for reconsideration of dismissal, Brownback seemed to imply the relevance of Geneva Convention standards in determining who is an “Unlawful Enemy Combatant”.

However, an order disclosed in the new Khadr documents contains this alarming statement:

“The parties are advised that matters presented, both factual and legal, concerning the issue of designation as an UEC, must be focused specifically on whether or not the accused meets the definition of UEC as established by the MCA (10 USC 948a(1))... Other matters which might affect jurisdiction (i.e., international law, constitutional law, criminal law) will not be heard in conjunction with this threshold or initial determination of jurisdiction.”

Brownback may simply be following the appeal decision in the Court of Military Commission Review, but the judge has been making other, troubling, statements.

For instance, he doesn’t think that the Supreme Court, in the Hamdan case, found the MCs to be “illegal” for failing to meet Geneva standards, and he believes Al Qaeda is a group dedicated to the spread of Islam.

After the Khadr adjournment, the Pentagon threw caution to the wind and leaked a captured video to CBS’s 60 Minutes.

This video is claimed to show Khadr making bombs and would have been proffered at his hearing.

* * *

imageThe Pentagon’s underhanded behaviour only drives more whistleblowing from within by both defence counsel, e.g. Lt. Col. Colby Vokey (pic) and prosecutors, e.g. Lt. Col. V. Stuart Couch.

Col. Couch, now an appellate judge of the Navy-Marine Corps Court of Criminal Appeals, was invited to testify to Congress about his experience, but was forbidden to do so by the Pentagon General Counsel, William Haynes. So much for judicial independence.

Meanwhile, another Guantanamo whistleblower, Lt. Col. Stephen Abraham, has filed an affidavit in the Hamad case elaborating on the failures of Combat Status Review Tribunals.

imageHistorian Andy Worthington (pic) provides some comments on Abraham’s latest revelations.

November also saw the leak of the Guantanamo Standard Operating Procedures Manual.

It authorises unlawful behaviour – some of it previously denied – e.g. not allowing Red Cross access.

Leading psychologists were quick to note the unethical practices required of their profession.

* * *

In the end, even Guantanamo is too temperate for this government. Something more rigorous is required.

According to reports reaching the well-informed Scott Horton, “the Administration has put together a group of scholars headed by a right-wing activist judge to craft legislation to introduce a new court of Star Chamber, perhaps to be floated in the coming year”.