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Roger Fitch Esq
28 August, 2008  
Our Man in Washington

Bit by bit the courts are upsetting the torture apple cart. The English High Court is the latest, ordering that evidence of the torture of a British resident be handed to his lawyers. Perfidious English and their damn common law


imageThe net may be closing on the Bush Gang. It started June 12, when the administration lost the Boumediene case, soon to be the first habeas heard, in (shudder) Judge Richard Leon’s DC district court.

On June 23, the DC Court of Appeals ruled unanimously against the Bush administration in Parhat’s case.

Now, Parhat, one of the persecuted Chinese Uighurs, could be the first of the detainees to be brought from Guantánamo to Washington if his lawyers have their way.

The 2nd Circuit, meanwhile, has reopened, sua sponte, the Arar civil damages claim brought by a Canadian deported by the US to Syria and tortured.

The Washington Independent has more on the Arar case and its likely consequences.

In New York, US district court judge Alvin Hellerstein has given the CIA a final deadline before holding the agency in contempt in connection with the spoliation of, er, torture videotapes.

In the new October term, a civil case brought by the petitioners in the 2004 Rasul case seems headed for the Supreme Court.

Rasul v Myers is the case in which the DC circuit famously found that torture was foreseeable and within the scope of employment for detaining military authorities (see my post of January 22).

Here’s the petition for certiorari.

imageBy far the most direct blow to the Bush policy in Guantánamo, however, has been struck by the High Court of England and Wales.

On August 21, the court ruled that the UK government must hand over exculpatory documents, including evidence of torture which may have produced “confessions”, for the benefit of former British resident Binyam Mohamed (pic), charged in a military commission at Guantánamo.

Mohamed’s High Court win (summary here) echoes a recent Supreme Court of Canada decision that required the release of exculpatory evidence for the Canadian citizen Omar Khadr, also facing a military commission (see my post of June 2).

Human rights lawyer Joanne Mariner comments on the implications of the decision in FindLaw’s Writ.

Unlike Canada, which washed its hands of a citizen, Britain is seeking the repatriation of a lawful resident, but Mohamed’s application is even more urgent than Khadr’s, as he is facing a possible death penalty.

The Pentagon, meanwhile, is rushing to try Mohamed before he can obtain exculpatory evidence – something the prosecutors do not intend to provide and claim they don’t have.

imageThe High Court put paid to that. It ruled Mohamed should have the information now, in order to present it to the Convening Authority, Susan Crawford (pic).

She is yet to decide whether to “refer” the Pentagon’s “sworn” charges, and whether to allow the death penalty.

In a chilling reference to the Bush administration, the High Court found there was a need to give the information directly to Mohamed, because “torturers or those who subject those in their custody to cruel, inhuman or degrading treatment do not readily hand over evidence of their conduct”.

The court added:

”[T]o leave the issue of disclosure to the processes of the Military Commission at some future time would be to deny to [Mohamed] a real chance of providing some support … to his account and other essential assistance to his defence. To deny him this at this time would … deny him the opportunity of timely justice in respect of the charges against him, a principle dating back to at least the time of the Magna Carta and which is so basic a part of our common law and of democratic values.”

More trouble may lie ahead for the Bush administration if the new Pakistani government encourages similar representations by Pakistani detainees.

As in Canada and the UK, the security services have plenty of information about the treatment of detainees by or on behalf of the US.

The Sindh High Court has investigated the rendition of Saifullah Paracha and Majid Khan, Pakistanis who had US resident status and are being held in Guantánamo.

imageThe Pakistani courts have also been trying to locate a well-known citizen, missing since 2003, Dr Afia Siddiqui.

Dr Siddiqui (pic) had been one of 38 people listed by Human Rights Watch as “ghost” or “disappeared” prisoners not disclosed by the US.

Now, according to some reports, Dr Siddiqui (whose three young children also disappeared) may have been held at the US-operated Bagram prison in Afghanistan.

In July, Aafia Siddiqui suddenly was acknowledged to be in US custody, after an alleged Afghan shoot-out.

She was transferred to New York and charged in federal court with (among other things) resisting arrest.

Dr Siddiqui was brought to court in a wheelchair, suffering from gunshot wounds.

The Pakistani Parliament has expressed concern.

* * *

At Guantánamo, the commissions continue.

Mohamed Jawad, who was 16 or 17 when imprisoned, is charged with attempted murder, a previously unknown “war crime”.

As intended, the news coverage has been extremely spotty. Few media noticed one of the most dramatic developments.

Lt Col Diane M Zierhoffer, a PhD military psychologist, was called to testify as to Jawad’s treatment at Guantánano, and took the military equivalent of the 5th amendment to avoid self incrimination.

It’s alleged that Dr Zierhoffer, a member of the “Biscuit Team” (Behavioural Science Consultation Team), had programmed Mr Jawad’s torments.

The Daily Kos blog has more.

The Jawad commission also heard evidence from Prof Madeline Morris, an expert on the law of war, about the difficulty of trying as war crimes, acts that occur before or outside war.

A Human Rights First observer was the only person to report this testimony, so awkward for the government.

Salon and an Amnesty report provide more background on the Jawad commission.

* * *

It is frequently claimed that Omar Khadr is the last remaining citizen of a “western country” being held at Gitmo.

Now a status report has been filed in the Guantánamo cases in Washington which describes a Russian still detained.

Against stereotype, Ravil Mingazov is a former ballet dancer.