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Roger Fitch Esq
27 October, 2008  
Our Man in Washington

Bits continue to fall off the Guantánamo “legal” process … Bush lawyers now say illegally detained Chinese Muslims cannot be released into the US because they are “terrorists” ... Concept of “enemy combatant” to get a long-overdue judicial airing

imageIn October we learned that the same methods used to torment foreigners at Guantánamo were used on Americans here at home, on US navy bases.

Michael Otterman, a journalist and a visiting scholar at your University of Sydney, has more.

This emerged from an FOI request by the American Civil Liberties Union, who posted the documents here.

Happily, the US hasn’t used the fruits of such interrogations for trials in the US.

No such constraints apply at Guantánamo, where the government is asking the Convening Authority for military commissions, Susan Crawford, to approve capital charges against Abd al-Rahim al-Nashiri, an alleged plotter in the 2000 bombing of the USS Cole in Yemen (see my post of July 4).

Crawford has disallowed the death penalty for Ahmed Ghailani (see my post of October 8). Perhaps she will find that al-Nashiri – one of three acknowledged recipients of CIA water torture – has suffered enough through his near-drowning experience.

imageA new film describing how the torture of men like al-Nashiri (pic)was arranged at the White House has been acquired by the government-funded PBS.

Unfortunately, Torturing Democracy will not be shown before a new president takes office.

However, the script is available.

In Canada, the election is over, and the CBC has broadcast a film about the Americans’ detention and mistreatment of Canadian Omar Khadr.

Meanwhile, pieces continue to fall off the shambles that is Guantánamo.

The recently removed “legal adviser” to the military commissions, General Tom Hartmann, is the subject of two different investigations for misconduct.

imageJudge Patrick Parrish (seen here) has deferred the trial of Omar Khadr until after a new US president takes office.

Most significantly, there has been major blowback from the public resignation of the prosecutor Lt. Col. Darrel Vandeveld (see my Oct 8 post).

Col. Vandeveld attributed his resignation to Pentagon interference and misconduct in the case of Mohamed Jawad who, like Khadr, was a child when captured.

Jawad, however, did not benefit from Vandeveld’s whistleblowing.

Instead, charges were dropped in five other commissions where Vandeveld was prosecutor, ostensibly because of the colonel’s involvement.

imageStacy Sullivan (pic) of Salon has more.

One of the five Vandeveld prosecutions dismissed by the Pentagon is the notorious case of Binyam Mohamed, and when it is refiled (as the government promises) it is unlikely to include claims of a plot to launch a “dirty bomb” in the US.

This we know as the government abandoned its “dirty bomb” claims in Mohamed’s DC habeas case.

Author of The Guantánamo Files, Andy Worthington, has more.

By no coincidence, the English High Court has been considering Mohamed’s case seeking exculpatory evidence in the possession of the British (see my post of August 28).

The UK court strongly implied the Washington and Guantánamo actions had been taken to avoid discovery of the circumstances leading to Mohamed’s confessions, which were about much more than dirty bombs.

The Guardian has more.

* * *

The Bush administration introduced the Detainee Treatment Act in 2005 to shortcut judicial scrutiny of Guantánamo detentions.

Then the DC Court of Appeals unexpectedly breathed new life into the DTA by calling for broad discovery of the claimed grounds for Pentagon detention.

In its Boumediene decision, the Supreme Court left standing the DTA procedures in the DC Court of Appeals while recognising the right of habeas in DC District Court.

As I reported earlier (September 26), the Bush administration has been trying to limit habeas discovery in DC district court, while at the same time attempting to kill what it considers more expansive discovery rights already established by the Court of Appeals for DTA reviews.

Now the government wants en banc review in the Court of Appeals in order to close down DTA actions, and is arguing against its own legislation.

Scotus Blog has more.

The en banc DC Circuit denied review of the case in question, Bismullah, before Boumediene was decided, so the detainees seem headed for the Supreme Court.

That should see the Bush Regime safely out of office, having thwarted all judicial review for seven years.

* * *

imageOn their way out the door, Bush lawyers are making amazing arguments in the DC District Courts and the Court of Appeals concerning the Chinese detainees, the ethnic Uighurs, who are held unlawfully (as the government admits) at Guantánamo.

In my last post I reported how Judge Ricardo Urbina (pic), in the Parhat case, ordered the release of 17 Uighurs into the US, and the government appealed.

Now, the government has filed a motion claiming that the men, all of whom the government calls “no longer enemy combatants”, are in fact terrorists and unqualified for admission to the US.

The government effectively told the DC court, “We can’t release these men in the US – we treated them bad and made them mad, and now they really are dangerous”.

As the New York Times observed, “The administration is not afraid the Uighurs will take to the streets… It is afraid they will take to the microphones.”

The change of position took the State Department by surprise, and caused it to cancel a trip abroad designed to find a new home for Uighurs now branded “terrorists” by Justice.

Marty Lederman has more here and here.

* * *

The habeas hearing of the Boumediene defendants is scheduled for today (Oct. 27) and will be the first one to be heard out of all the Guantánamo cases ever filed.

Boumediene possesses the potential to seriously discomfit the government, judging from the defence’s traverse to the government’s habeas return.

imageMother Jones has the details.

Not surprisingly, the government was allowed to amend its habeas return by the Boumediene judge, George Bush’s devoted lapdog, Richard Leon (pic).

The government used the opportunity to drop the charges it alleged in 2004, of a plot to blow up the US embassy in Sarajevo – something unrelated to any war.

In Boumediene, the illusory “enemy combatant” concept will finally be aired.

One of the things that Leon will be considering is the definition of an EC, an expression with no legal standing.

Scotus Blog has links to the briefs of the government and petitioners with their opposing definitions.

The relevance of “enemy combatant” status has become a point of contention in military commissions as well.

Andy Worthington explains.

* * *

George Bush is sick of seeing his name in lights, so the Justice Department has filed a new motion in the DC habeas cases seeking to “dismiss improper respondents.”

All the cases should be named after the Secretary of Defence, the detainees’ custodian.

According to Justice, “it is well-settled that courts lack jurisdiction to compel the President to perform official acts”.