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Roger Fitch Esq
30 November, 2008  
Our Man in Washington

A tendency for military judges to toss out coerced confessions doesn’t bode well for the government’s case against the 9/11 defendants, some of whom have been put on the rack … The Boumediene habeas case grinds on leaving in its wake some curious authority on the meaning of “enemy combatant”


imageThe Guantánamo military commissions are all but dead.

Despite huffing by the chief prosecutor, Lawrence Morris, no more cases are likely to be brought or tried.

The Omar Khadr case is set for trial on January 26, six days after President Obama takes office.

DC District Court Judge John Bates refused to stop the trial, but Canada may seek his return.

Khadr’s commission resembles Mohamed Jawad’s in many respects.

Both were captured as children, and charged with attacking American soldiers with grenades – never previously identified as a “war crime”.

The cases against both seem to rest on coerced confessions. Military judges have frequently ruled in their favour; indeed, a judge was removed from Khadr’s case, most likely for that reason.

The case against Jawad is also near extinction.

Prosecutor Darrel Vandeveld quit because the government refused to provide exculpatory evidence to the defence.

Subsequently Judge Stephen Henley excluded Jawad’s confessions from both Afghanistan and Guantánamo.

Meanwhile, Salim Hamdan – the second recipient, after David Hicks, of a dodgy military conviction (see my post of August 8) – has been repatriated to Yemen.

So much for the government’s claim that he would be held forever, even after his remaining “sentence” (five months) had been completed in December.

But Hamdan was not the last person to be subjected to a commission trial.

On the last day of October, The Miami Herald greeted its readers with the unconsciously ironic headline, “Jury Deliberates at Gitmo Propaganda Trial”.

Ali Hamza al-Bahlul was tried for the “war crime” of producing propaganda videos for Osama bin Laden and, after putting on no defence, was convicted on all charges and sentenced to life imprisonment.

Andy Worthington has more.

Next up, in a preliminary hearing, was Ibrahim al-Qosi, charged with the “war crime” of being a cook and an accountant for Osama bin Laden.

The ACLU seems to have been the only independent observer of al-Qosi’s hearing and posted this report.

The Miami Herald has more.

A single reporter was the sole outsider to turn up for Mohammed Hashim’s arraignment, the first since the US election. Injustice is no longer news.

In the case of the recently arraigned “9/11” defendants the judge, Ralph Kohlmann, has either been removed or persuaded to retire early.

The new 9/11 judge is Stephen Henley, who threw out Jawad’s coerced confessions.

That doesn’t bode well for the government – several 9/11 defendants have been tortured.

* * *

With commissions winding down, “enemy combatant” claims are concentrated in the DC habeas cases, just as the Supreme Court directed in 2004, never thinking the US would flout its rulings for four and a half years.

The lead habeas remains that of the Bosnian-Algerian petitioners in the Boumediene case, the most recent of four successive cases where the Supreme Court ruled against the Bush administration’s “counter-terrorism” policies.

Boumediene is before the George W. Bush appointee Richard Leon, a long time Republican fixer who supports “enemy combatant” detentions.

It was Richard Leon who ruled in 2004 that these same six Boumediene petitioners had no habeas rights to vindicate, despite the Supreme Court’s decision in Rasul (Hicks) remanding Guantánamo cases to district courts in Washington for that very purpose.

Leon’s was an anomalous ruling involving a handful of petitioners and contrary to the decision of Judge Joyce Hens Green in the principal case (Al Odah/Hicks).

It led directly to the Supreme Court decision in the Boumediene/Al Odah case.

On remand, the government dropped its previous claims that the Boumediene detainees plotted to blow up the US embassy in Sarajevo.

The Bosnian High Court rejected those claims six years ago following an investigation at the Americans’ behest.

The men were sent to Guantánamo anyway, and the former premier and interior minister of Bosnia are under investigation for handing them over.

Abandoning the bomb plot left the US few grounds for military detention – the other acts alleged had nothing to do with an armed conflict – but the Bush lawyers remained strangely confident.

Judge Leon had, after all, adopted a broad definition of “enemy combatant” that included association and support and rolled up people who fell outside a time or place of war.

As insurance, the government filed additional secret documents with Leon and invited the judge to look at them should he feel inclined to release the petitioners.

The New York Times reported the Department of Justice …

“filed a sealed envelope of evidence with Judge Leon, which the detainee lawyers have not been permitted to see … the government lawyers said that if the evidence in the closed hearings was not enough to justify the detention, then the judge should open the envelope.”

In the end, Leon found the government had no evidence as to five of the men and ordered them to be released.

The New York Times has more.

Even so, Leon’s decision, if not overturned on appeal, establishes a troublesome precedent.

It accepts the Pentagon’s tortuous definition of “enemy combatants”.

His ruling means that, with the right facts, a person far from a battlefield can be classified part of a stateless enemy at war with the US somewhere on the planet, for little more than thinking about an act helpful to Osama bin Laden, wherever he may be.

The timetable for the rest of the Guantánamo judicial showdown, including the Chinese Uighurs, is set out by Scotus Blog.

The district court-ordered release of the Uighurs, who the government admits are innocent refugees, has now been argued in the Court of Appeals.

Judging from the comments at oral argument by the partisan Republican majority on the appeal panel, the prospect of the Uighurs’ release in the US is not looking good.

* * *

Roger Cohen sums up Guantánamo rather well, the whole sorry tale, in a New York Times op-ed.

He describes a single sheet of paper given to Afghans released after years of detention, without, of course, “an apology or compensation for their season in hell”:

“An Administrative Review Board has reviewed the information about you that was talked about at the meeting on [ ] and the deciding official in the United States has made a decision about what will happen to you. You will be sent to the country of Afghanistan.”

As Cohen sadly notes:

“We have ‘the deciding official’, not an officer, general or judge. We have ‘the information about you,’ not allegations, or accusations, let alone charges. We have ‘a decision about what will happen to you,’ not a judgment, ruling or verdict. This is the lexicon of totalitarianism.”

And Kafka.