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Roger Fitch Esq
30 November, 2009  
Our Man in Washington

Two-tiered trial system for Guantánamo detainees smacks of a clunky political compromise … Obama lawyers subvert Supreme Court ruling on habeas


The Attorney General has decided to try the “9/11” defendants in US district court in Manhattan, rather than by military commissions.

Reaction has been swift and shrill.

Many “conservatives”, but not all, are frightened of a fair trial for the terrorist gang.

This terror-hysteria is not completely unfounded.

imageIn theory, Khalid Sheikh Mohamed could go free. Sometimes people are brought to the US for trials that don’t proceed, and Immigration can’t deport them as there’s nowhere to send them.

Yet it’s hard to see what else the AG, Eric Holder (seen here with Caroline Kennedy), could have done if he hoped to get valid convictions.

Even if one assumes that attacks on civilians by non-state actors from friendly countries somehow qualify as acts of war, there was no war on foot when the planning took place or the attacks occurred.

But this is only a problem if you accept the law of war as it appears in the Geneva Conventions.

Perhaps when the history of America’s decline is written, attention will focus on the nutty notion that the US was exceptional, above all nations, unique to God.

It had to have special treatment at all times, including the right to its very own version of the law of war.

One example is the announcement by Holder that the US will try some Guantánamo detainees as “terrorists” in US courts, while others, situated much the same, are tried as “war criminals” in military commissions.

The commissions were partially renovated by the Military Commissions Act 2009, but remain constitutionally doubtful.

By maintaining them, Obama has made a rod to beat himself.

Why? Republicans oppose federal court trials for the 9/11 defendants – as if criminal trials were some radical departure, not normal – but if Obama had kept his promise to abolish the military commissions, there would be no fall-back position for his opponents, no alternative to criminal cases.

Worse, Obama and his AG have unevenly supplied civil trials.

Only five detainees get the full legal treatment, yet other Guantánamo commission defendants are equally entitled to their day in court.

imageA possible reason for their rejection: ambitious US Attorneys don’t want their dodgy cases.

When the AG was asked why the tortured Abd al-Rahim al-Nashiri was to be tried by military commission for the 2000 attack (in Yemen) on the USS Cole (pic), Holder said it was because it was a military act.

Ordinarily, it is an attack on a civilian target, not a military one, that is a violation of war. In any case, there was no war in Yemen in 2000.

Deborah Pearlstein has more.

There seems no logic to the distinctions made, and the AG’s responses to Congressional questions do not inspire confidence.

He said crimes can be simultaneously war crimes triable by military commissions and civilian crimes triable in federal court.

David Cole may agree, but many others don’t.

For whatever reason a two-tiered system has been designed and built and it leaves the government no wiggle room for a principled argument in favour of stateside trials in real courts of law.

As Glenn Greenwald notes, the administration has gutted its own arguments for 9/11 trials in the US.

Opinio Juris finds that in reality, it’s a three-tiered system, and many agree.

Some legal observers are more worried about enduring harm to American criminal law, and the rights of the accused, than transient danger to New Yorkers.

The 9/11 military commissions were part of a closed system that did not affect Article III (judicial) courts or the Uniform Code of Military Justice.

A 9/11 criminal trial in US federal court, however, is another matter. It could have serious unintended consequences. New precedents – and not necessarily benign ones – could flow from the case.

A former public defender warns in Slate that zealous 9/11 defence counsel may “create bad law” through motions which, when lost, will receive appellate imprimatur and become alarming precedents for the rest of us. Speedy trials, for instance, might be redefined liberally for the government.

imageA former federal prosecutor notes that the acknowledged torture of KSM et al will put the defence of “outrageous government misconduct” – behaviour that “shocks the conscience” – in play and perhaps spell the end of this defence.

“Outrageous government misconduct” was raised unsuccessfully in the Miami trial of José Padilla (snap).

As I noted in my last post, however, the judge in the Al Marri trial accepted that official behaviour merited a reduction in time served for Ali Al Marri.

* * *

After years of largely ignoring hundreds of habeas petitions filed in DC by Guantánamo men, mainstream news organisations finally have begun to notice the proceedings, some of which date to 2002.

For seven years, the government obstructed Guantánamo habeas cases by every means, fair or foul.

Petitioners were successfully prevented from learning the basis of their detention in every one of the cases, although from 2003 appellate courts ruled detainees could make the government answer in court.

The government ignored these decisions, until the Supreme Court in 2008 reaffirmed the right to habeas.

Cases have restarted, and the government has lost 31 of 39.

Winning habeas, however, doesn’t mean detainees are released. Many have no place to go.

Some who leave Guantánamo still don’t go free. A little-noticed decision by Judge Richard Leon concerns claims of constructive continuing custody.

Legal Times has more.

Meanwhile, the government has found a new ruse to avoid habeas hearings: simply declare the person “cleared” for release (even though nothing changes, and the prisoner is not released) and use this change of status as a ground for having the hearings themselves stayed.

It was Obama’s lawyers who devised this diabolical subversion of the Boumediene decision.

imageIn response, Chicago lawyer Candace Gorman filed an original writ of habeas corpus in the Supreme Court on behalf of Abdul Al-Ghizzawi, a Guantánamo client “cleared” merely as a stratagem to defer indefinitely his DC habeas.

Ms Gorman (pic) reported this on her Guantánamo Blog website (cached here), until she was “muzzled” by the government and forced to take it down.

Briefly thereafter, Gorman understood herself to be unmuzzled and posted again (cached here) but she was forced to remove that as well when the government obtained an order from Judge John Bates.

Scotusblog explains the “strange case of Al-Ghizzawi”.