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Roger Fitch Esq
5 August, 2009  
Our Man in Washington

David Hicks strung-up for something the Administration now says is not a “war crime” ... Habeas challenges stonewalled by Bush holdovers at DoJ … Case against child detainee collapses … Mohammed Jawad sent back to Afghanistan

imageThe Senate’s Armed Forces Committee has held hearings on proposed amendments to the Military Commissions Act that would keep the dreaded Star Chamber for terrorists in business.

The Judiciary Committee has meanwhile heard testimony on civilian and military alternatives for trying so-called terrorists.

David Kris, Obama’s National Security man at the Justice Department and the Pentagon General Counsel, Jeh Johnson, appeared before both Senate committees.

One of the topics for discussion was “material support for terrorism”.

Of course, the Bush lawyers knew that this was never a war crime.

That’s why they harked back to US Civil War crimes by “banditti” and “jayhawkers” (see my post of August 8, 2008) to justify this unknown military crime, which appeared for the first time in the MCA.

Now, Obama lawyers are conceding that “material support” is not a war crime.

In Senate testimony, Kris and Johnson suggested that the MCA’s “offence of material support for terrorism” should be removed from the Act because it wasn’t likely to be upheld as a “traditional” war crime by appellate courts.

This admission – that the material support convictions at Guantánamo were most likely invalid – comes too late for the “convicted terrorists” David Hicks and Salim Hamdan, but it offers some hope for the lawyers appealing the conviction of Ahmed Al-Bahlul, presently before Bush’s sham Court of Military Commission Review.

imageAl-Bahlul was also convicted of that other non-war crime, “conspiracy.”

Both Kris and Johnson (pic) seemed to think that charge could be fixed-up, probably alluding to the addition of a joint-enterprise theory of action by conspirators. Bare conspiracy has never been a war crime.

Already, Gitmo lawyers are seizing on the admissions by Obama’s men.

* * *

In an ideal world, Barack Obama would deal with the most outrageous misdeeds of the Bush administration first.

However, the quantity of crime and the amount of misinformation and propaganda are such that, six months on, major miscarriages of justice remain unaddressed.

Moreover, Mr Obama is a committee man, who must study every “policy” before it is altered and so the injustices and mistakes of Guantánamo continue, with the Commander-in-Chief using Bush’s stale state-of-war arguments as an umbrella for on-going violations of international law, US law and common decency.

It’s now clear that a majority of the prisoners at Guantánamo are not detainable under the laws of war.

Those few who are have been denied prisoner of war status, or for that matter, the basic protections of Common Article Three.

As Andy Worthington documents in The Guantánamo Files, there are real war criminals from the Afghan wars among the prisoners at Gitmo, men who could arguably be prosecuted by international tribunals for the crimes they committed against the Afghan people.

Their names, however, are never mentioned and they haven’t been put forward for “war crimes” trials.

imageInstead, we hear about men or boys charged with injuring American soldiers in Afghanistan or elsewhere or with plotting to do so – acts which are not in fact “war crimes”, but which have traction with a public lulled over eight years into accepting the Bush theory of humanitarian law.

Besides the military commissions for new and invented war crimes, there are habeas challenges to war-time detention by those who claim they are non-combatants.

Here in Washington, the DoJ lawyers, many of them Bush holdovers, continue to pointlessly stonewall four or five-year-old habeas challenges.

The government is losing most of these cases as federal judges apply their own definitions of the “enemy combatant” concept concocted by the Bush administration and continued under another name by Obama.

ProPublica has a chart comparing the results in the habeas cases.

The score now stands at 28-5 for the detainees.

Republican appointed judges are now ruling against the government, even when Obama puts forth the very arguments George Bush made, but most of the habeas cases remain unresolved.

* * *

The most notorious habeas (and military commission) has been that of Mohammed Jawad, the child – possibly as young as 12 – who was brought to Guantánamo and charged with the “war crime” of throwing a grenade at US occupation soldiers in Afghanistan.

Jawad was never imprisoned separately as (most) child detainees were and his case involved sensational claims of outright torture.

The Invictus Blog recalls the unusual features of the commission case.

The tribunal case against Jawad was probably doomed when a US military psychologist, called by the defence to testify about her treatment of Jawad, “took the Fifth Amendment.”

It was gutted after the prosecutor quit, supporting the defence, and the military judge threw out all of the boy’s confessions as coerced.

The government seemed to have nothing left in its commission case, but the Obama administration continued the shameful Bush appeal in the Court of Military Commissions Review against exclusion of the tortured confessions.

The Guantánamo proceedings were apparently dropped on the last day of July although nothing has appeared on the Pentagon’s commissions website.

Initially, the Obama lawyers attempted to rely on the excluded coerced confessions in Jawad’s DC habeas case, but this policy was ultimately abandoned.

imageWhen the DoJ hinted that it would nevertheless persist in claims that it had a right to hold Jawad and might yet conjure up criminal charges in US civil courts, DC Judge Ellen Segal Huvelle (seen here, centre) spat the dummy see transcript.

On the eve of Judge Huvelle’s next hearing, the parties were still warring, as Scotus Blog reported.

President Karzai demanded Jawad’s return and offered a plane to fetch him.

All this put Judge Huvelle on the spot.

The DC Circuit Court of Appeals has ruled that district courts have no authority to release prisoners into the US – a decision which makes habeas meaningless and is likely to be reversed by the Supreme Court in the next term – but the Circuit has said nothing about releasing prisoners to other countries, e.g. Afghanistan.

The Obama lawyers, facing certain defeat and not wanting to give the courts a useful precedent, gave in and filed a pleading in which they agreed to send Jawad to Afghanistan.

The government asked for time to notify Congress under the (probably unconstitutional) requirement of a new law that Congress be consulted before transfer of prisoners from Guantánamo.

Scotus Blog has more here.

On the appointed day, Judge Huvelle entered an order freeing Jawad similar to the one proposed by the government.

Scotus Blog has more.

Huvelle insisted, however, on a paragraph requiring the government to treat Jawad humanely.

This is what we have come to.