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Roger Fitch Esq
13 November, 2006  
Our Man in Washington

The new law of torture … Before the Bush regime, the normal rule was that if suspects were tortured they should not be put on trial. Now Bush wants his trials and convictions, regardless of the tainted evidence. Also, defence lawyers’ access to abused clients is to be curtailed

imageOne of the first things that the new speaker of the house, Nancy Pelosi (snap) will be pressed to do is pursue Bush administration officials for one or another of their crimes. Using water torture on prisoners seems near the top of the list, especially when the vice president openly supports it.

Now if the vice will just confirm that he and his deputy, Bush, personally authorised near-drowning, I believe we would have a prima facie case for a prosecution under the US War Crimes Act – even as amended last month. That’s if a sitting president or vice president can be prosecuted.

Georgetown Law prof and ex-DoJ office of legal counsel Marty Lederman is one person who thinks waterboarding is torture, and points out that as early as 1901, a US soldier was court-martialled and given 10 years hard labour for using the “water cure” on a Filipino. Another US soldier was court-martialled in 1968 for waterboarding a Vietnamese prisoner.

* * *

Torture-tainted confessions have already featured as defences in US “terrorist trials”. There was the US citizen, Abu Ali, who alleged he was tortured into confessing – the only evidence of his guilt – by Saudi security services while he was imprisoned in Riyadh at the behest of the US.

This defence was unavailing, as the Saudi interrogators swore that the confession was voluntary, and the judge declined to allow collateral attack on the Saudi interrogation methods, though witnesses stood ready to testify to horrendous practices.

At the moment an American on trial in Chicago, Muhammad Salah, is alleging that he was tortured by Israelis – in 1993 – into confessing that he had acted for Hamas. In this case, as well, there is little other incriminating evidence but, as before, the interrogator has appeared and testified that all was above board.

Again, there is no way the defendant can traverse these claims, a fact that worries many, including legal commentator and author Jennifer Van Bergen.

Now the torture issue has come up in the Padilla “terrorism case” in Miami where it’s alleged that the administration countenanced torture and CID (cruel, inhuman and degrading treatment) within the US itself, against a US citizen.

imageDefence lawyers in the Miami case are arguing that the government’s conduct, while Padilla (snap) was in military custody, is so outrageous that his indictment in Miami must be dismissed.

As Yale law prof Jack Balkin asks, is the government going to claim that the 8th Amendment doesn’t apply, even in the US, when George W. Bush calls you an “enemy combatant”? That was Jose Padilla’s status while held in solitary confinement in a Navy Brig in South Carolina for three-and-a-half years.

Before the coming of the Bush regime, it was a given that if you decided to torture people you couldn’t try them. George Bush, however, wants his trials – and convictions. The government intends to try the 14 new Guantanamo arrivals, despite the fact that some of them have been subjected to what the world calls torture.

Perhaps the spontaneous statements of tortured suspects, made a decent interval after being nearly drowned, will be regarded as merely “coerced”. These are the sort of things that concern Human Rights Watch’s Joanne Mariner in her continuing analysis of the Military Commissions Act.

In any case, the Bush lawyers evidently believe that the new MCA, combined with sympathetic military judges, will result in the admission of evidence obtained under CID and even torture. Such “trials” and “evidence” are of course inconsistent with Common Article 3 of the Geneva Conventions.

Unfortunately for this plan, new habeas actions have been filed in Washington on behalf of two of the gang of 14, seeking immediate legal representation. The notorious Ramzi bin Al-Shibh wants a lawyer, and so does Majid Khan.

Anticipating this, the Bush regime plans to strictly limit the opportunities of defence lawyers to learn of any abuse. After all, New York lawyer Lynne Stewart recently got a 26-month jail term having breached an ad hoc rule of the Department of Justice prohibiting her from conveying information from her terrorist client to the outside world. The DoJ asked that she get something akin to a life sentence.

Now the government hopes to take this principle a step further and stop the Guantanamo defence counsel receiving information from their clients in the first place.

In my last post, I noted the prediction that the Bush administration would block the introduction of evidence of torture in the new military commissions, based on the MCA’s prohibition against disclosing “methods or activities”.

Now, in the habeas case of Majid Khan, the government is attempting to prevent the detainee from talking with his own lawyer about his interrogation, or indeed, even meeting his lawyer.

The government’s Memorandum in Opposition to the Motion for Emergency Access to Counsel is breathtaking. Marty Lederman has more, including the DoJ memo and the supporting declaration of a CIA functionary.

imageThe government’s motion may well succeed; the judge hearing the case is Reggie Walton (snap), the second most Bush-friendly DC district judge, after Richard Leon. Bush appointed both of them.

Curiously, the government is not planning to try the so-called 20th hi-jacker, who was already at Guantanamo. The government has apparently conceded that it cannot try Mohammed Qahtani due to his interrogation.
That’s the gist of this MSNBC report and another from MSNBC.

I would have thought water torture was worse than Qahtani’s reported ordeal – for which a torture log has been published, by Time magazine.

* * *

I also mentioned in my last post that, in some ways, the MCA would make it more dangerous for administration officials travelling abroad. Ironically foreign courts, which claim universal jurisdiction over human rights abuses, would have an easier time accepting cases once the US granted its citizens immunity from war crimes prosecutions in the US.

Sure enough, the Center for Constitutional Rights has revealed that it is going to make a new stab at nailing Defence Secretary Rumsfeld – in Germany – on this very basis. When Rumsfeld’s 2004 prosecution was dismissed, the German prosecutor found there was “no reason to believe that the accused would not be prosecuted in the United States”. As The Nation points out, the passage of the MCA negates that belief:

”[The MCA] provides retrospective immunity for civilians who violated the War Crimes Act, including officials of the Bush Administration. Such an attempt to provide immunity for their crimes, it will be argued, is in itself evidence of an effort to block prosecution of those crimes… Indeed … when Yugoslavia sought to immunize senior government officials, the United States declared the act itself to be evidence of such a conspiracy.”

* * *

It seems that David Hicks will be getting a post Hamdan military commission trial ahead of the Gang of 14. In the meantime, the government is seeking a reversal of Hicks’ district court habeas victory, a different issue from the legality of the military commissions.

A third round of briefing on the still-pending appeal has begun, and the brief for Al Odah (Hicks), has just been filed. The arguments this time deal with the effect of the new MCA on pending habeas actions.

The January 2005 decision of Judge Joyce Hens Green found, among other things, that the Combat Status Review Tribunals were invalid. The new MCA assumes that these CSRTs (unlike the previous military commissions) are valid. However, no legislation has created them and the only cases interpreting them – that of Judge Robertson in the Hamdan district court case, and Judge Green in the Al Odah (Hicks) case – found them unconstitutional.

The MCA, of course, suspends the writ of habeas corpus and offers a substitute. David Hicks argues that the MCA’s use of the CSRT and a Court of Appeals review of its determination fails to provide a habeas equivalent, and without it, the suspension clause of the US constitution is implicated. That’s the clause that says:

“The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in the case of rebellion or invasion the public safety may require it.”

The Hicks brief also notes that, in Hamdan, the DC Court of Appeals and the Supreme Court both expressly affirmed that a defendant is entitled to have a habeas challenge to (military) jurisdiction heard before a trial commences. The government’s response is due today, November 13.

An amicus brief for Hicks has been filed by a group of retired federal judges. It deals exclusively with the danger of torture being unreviewable. The example of Mamdouh Habib is given as a cautionary tale.

Someone should send a copy of this brief to Mr Philip Ruddock, since the attorney’s understanding of what constitutes torture was rather comprehensively contradicted by both the Australian Army and the Australian Federal Police.


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