Cowardly Chicken Little Colorado Sheriffs

I have pretty much no respect whatsoever for the 41 Colorado Sheriff's who have written a letter to President Obama explaining that they are terrified that Guantanamo Bay inmates held in a maximum security prison in Colorado would "significantly - and unnecessarily - endanger our citizens."

This simply does not pass any reasonable reality check and makes this prisoners out to be comic book supervillains, rather than the bunch of mostly low level, mostly Yemeni al-Queda functionaries who haven't even committed any war crimes, that most of them are in fact.

The notion that some dangerous al-Queda fifth columnists would try to spring these detainees from a Colorado prison is simply laughable.  They would stand out like a sore thumb and have a very long way to go to a safe haven, unlike the current site in Cuba, where the Cuban government would likely embrace with open arms any escaped detainee and could do so with impunity.

The letter says much more about how cowardly and detached from reality most of these local government elected officials in Colorado are, than it does about the realities of the policy issues involved.

This is simply partisan demagoguery at its worst.  The politicians, including a few Democrats, who have given any credibility to this argument, deserve similar scorn.

Military Justice, Isn't.

It is an embarrassment  to be a citizen of a country, like the United States that conducts the kinds of kangaroo court proceedings that the United States military is conducting at Guantanamo Bay.

There, military tribunals issue orders that prosecutors and judges can see, but defense counsel and the defendants are not allowed to see.  This is a fundamental miscarriage of anything remotely resembling due process, and it is fundamentally at odds with the principles upon which our nation was founded.

It is clear that the truth of the matter is that the U.S. is covering up an illegal policy of intentional torture, while seeking to use information obtained through torture in legal proceedings.  The defies all domestic and international standards of justice and deprives proceedings meant to bring terrorists to justice of all legitimacy.

President Obama, as a former constitutional law professor, with whom the buck stops as commander in chief of every members of the United States military involved in these military tribunals, owes our constitution and our nation's reputation for fairness and justice, more respect.

Guantanamo Bay Detainees Have Habeas Rights

The U.S. Supreme Court ruled 5-4 in the case Boumediene v. Bush today that detainees at Guantanamo Bay have a right to bring habeas corpus cases in federal court. The habeas corpus jurisdiction stripping provisions of laws enacted by Congress to deny them this right (the Detainee Treatment Act and the Military Commissions Act) were held unconstitutional.

In another detainee case, Munaf v. Geren, the U.S. Supreme Court held unanimously, that the federal courts have habeas corpus jurisdiction over U.S. citizens held in military custody by U.S. soldiers in a military chain of command, even if they are part of a larger military coalition.

But the U.S. Supreme Court also held that on the merits in that U.S. citizens who travel voluntarily to a foreign country and are held there by U.S. military authorities may be transferred to the custody of local courts to face criminal charges arising from conduct in that country. No exception to this ruling on the merits exists even if the local courts don't meet U.S. constitutional standards and local authorities are alleged by authorities other than the U.S. Executive Branch to be likely to engage in torture in the particular case before a U.S. Court.

The later opinion involved U.S. citizens who voluntarily traveled to Iraq and faced indictment by Iraqi courts for offenses committed in Iraq. Thus, this leaves open the more general question of the legality on the merits of extraordinary rendition of U.S. citizens to countries whom third parties claim engage in torture. The question of whether the U.S. military may transfer someone to foreign authorities whom it openly agrees are likely to torture the person transferred also remains unresolved.

These cases also leave open the jurisdiction of U.S. courts in habeas cases involving people who aren't U.S. citizens in places, unlike Guantanamo Bay, where the U.S. does not have de facto sovereign authority, although the Guantanamo Bay case made clear that the proper analysis hinges on the objective reality and practicalities involved, rather than legal formalities like sovereignty. The Guantanamo Bay case also suggested that a government intent to evade habeas corpus jurisdiction by its actions was a factor to be considered, and that an intent to evade habeas corpus jurisdiction hurts the government's case.

The scope of habeas review is unclear. But it appears that detainees will be allowed a full evidentiary hearing in a federal courts with the power to release them from custody on the questions of whether the detainee is indeed an enemy combatant, and on the question of whether the President had the legal authority to detain the detainee given the findings of fact made in the federal court. The Combat Status Review Tribunals currently in place to make enemy combatant determinations were found by the U.S. Supreme Court to be constitutionally inadequate.

The ruling leaves in tact provisions of the Military Commissions Act establishing an amnesty for U.S. government officials who committed war crimes during the Bush Administration from civil and criminal liability, and a prohibition on entertaining civil actions of detainees other than habeas corpus petitions in connection with their detentions.

While the rulings have no direct impact on the military commission trials of a couple dozen detainess for war crimes, legal commentators have suggested that the ruling may enlarge the scope of legal arguments that counsel for the detainees may make before those Commissions by clarifying that U.S. Constitutional protections apply to detainees at Guantanamo Bay. For example, detainees in custody prior to the enactment of the Military Commissions Act may be allowed to argue that under the Ex Post Facto clause, they may not be tried for crimes like conspiracy, which were not considered war crimes prior to the enactment of the Military Commissions Act. The admissibility of evidence based upon coerced testimony (i.e. torture) may also be in doubt. And, this ruling probably spares Omar Khadr from the possibility of the death penalty, because he was a juvenile at the time that the alleged war crimes were committed.

Government Removes Omar Khadr's Judge

In the normal course of legal practice, you can't remove a judge in the middle of a case because he's ruled against you on discovery and jurisdictional issues. But, Guantanamo Bay's Military Commissions aren't the normal course of legal practice, and the military has done just that in a pending Military Commission case.

After the jurisdiction ruling the military hadn't liked, it convened a military appellate court that hadn't been at place at the time that the appealed ruling was made, that reversed that decision.

Just this week, the military had defied the Military Commission judge's order of several months ago to produce medical and interrogation records in the government's possession concerning the man facing trial before it. But this defiance, rather than causing the government to be held in contempt of court, produced the removal of the judge, Army Col. Peter Brownback III, from the case at the direction of the Chief Judge of the tribunal.

Previously, Khadr's defense attorney was disciplined for criticizing the tribunal and quit the case, and his prosecutor resigned out of disgust with the system. Under current rules in the tribunal, Kahdr's new defense attorney will be told the identity of the witnesses against him, but Kahdr' will not be told their identity.

The Case

Canadian detainee Omar Khadr was captured in Afghanistan in July 2002 when he was fifteen years old.

Khadr, now 21, faces up to life in prison if convicted at Guantanamo on charges of murder, conspiracy and supporting terrorism. He is accused of lobbing a grenade that killed U.S. Army Sgt. 1st Class Christopher J. Speer during the firefight in which he was captured.

He also faces charges of attempted murder and spying. The charged ordinarily would carry the death penalty. As explained at greater length below, however, Omar Khadr's primary crime is being a soldier without a license recognized by the United States government.

He is the only Western citizen remaining in Guantanamo. Canada has refused to seek extradition or repatriation.

It isn't clear that he threw the grenade in question. Wikipedia, citing the Toronto Star, notes that:

In February 2008, the Pentagon accidentally released documents that revealed that although Khadr was present during the firefight, there was no other evidence that he had thrown the grenade. In fact, military officials had originally reported that another of the surviving militants had thrown the grenade just before being killed.

He allegedly met Osama bin Laden when he was ten years old, and was in his parents care until, at least, the month before he was captured.

Historical Background

Immediately before the U.S. and U.K. led invasion of the country, Afghanistan was at what had appeared to be the final days of a civil war between the Taliban, a fundamentalist muslim theocractic government that ruled most of the country, and a rebel group known as the Northern Alliance, made up of regional and tribal warlords, which had lost control of all but a small corner of the country.

The Taliban had emerged out of the chaos that had left Afghanistan effectively stateless in the wake of the civil war with occupying Soviet forces. The Taliban, since 1996 tolerated and was loosely allied with Osama bin Laden's al-Qaeda terrorist organization, which was behind the 9-11 attacks, which took place in 2001.

After 9-11, the U.S. demanded that the Taliban deliver up al-Qaeda leaders, shut down terrorist training camps and provide protections to certain foreign nationals in the country. The Taliban had counteroffered to try bin Laden in Afghanistan in an Islamic court, an offer that was immediately rejected. The counteroffer was promptly rejected and on October 7, 2001, the U.S. and U.K. invaded in a military effort that leveraged the rebels forces of the Northern Alliance and used the Northern Alliance as the core of a new regime. Before, October 7, 2001, the U.S. had not taken sides in this foreign civil war and had not clearly declared that collaboration with the Taliban amounted to supporting terrorism.

By July 2002, the Taliban had been defeated in most of Afghanistan by foreign troops allied with the Northern Alliance. At that point:

The Taliban, who during the summer of 2002 numbered in the hundreds, avoided combat with U.S. forces and their Afghan allies as much as possible and melted away into the caves and tunnels of remote Afghan mountain ranges or across the border into Pakistan during operations.

Omar Kahdr's firefight took place during these mop up operations. The Taliban itself lived to fight another day, regained a measure of military power, and continues to conduct an insurgency against the U.S. supported regime in Afghanistan, controlling some areas.

The conditions of his detention and interrogation have been inconsistent with anything that would be lawful for a prisoner of war, or a criminal defendant.

Legal Background

Under the "laws of war," uniformed soldiers with the recognized military of a sovereign nation who are captured are not guilty of war crimes or subject to military justice for killing enemy soldiers in battle. Instead, they are classified as prisoners of war and are subject to detention for the duration of the hostilities after their prisoner of war status is confirmed by a tribunal of the capturing power.

Child soldiers are subject to particularly lenient treatment, as they are viewed as both prisoners of war who are themselves victims of war crimes.

But the U.S. did not recognize Omar Kahdr as a uniformed soldier for a recognized military of a sovereign nation. While the Taliban and al-Qaeda both had organized forces involved in the civil war in Afghanistan, the U.S. did not recognize soldiers not in uniform and soldiers affiliated with the al-Qaeda part of the insurgency as eligible for prisoner of war status.

Murder by soldiers is not historically war crimes, conspiracy was made a war crime by the fiat of the Military Commission Act of 2006, and support of terrorism is largely a criminal law concept rather than a military law concept. Spying is the only historical war crime for which Khadr is charged, and the species of spying he is charged with is more that of a scout or reconnaisance soldier (observation of troop movements from afar), than the kind of human intelligence in disguise traditionally associated with spying as a war crime.

Someone who is not recognized as a legitimate soldiers is not protected by prisoner of war status and is instead criminally responsible for murder and other crimes for warlike acts. Without the protection of prisoner of war status, or reductions in culpability on account of his age, Omar Kahdr is, under the logic of the U.S. prosecution in the Military Commissions, culpable to the same extent that anyone who was involved in a murderous criminal gang. Indeed, under the kind of reasoning used in felony murder prosecutions in a criminal court, his involvement in the firefight may make him guilty of murder even if he didn't personally throw the grenade the killed the U.S. soldier.

But because Omar Kahdr is being classified as an "unlawful enemy combatant," he can be tried before a Military Commission. Unlike the criminal justice system, this system has not afforded him protections from harsh treatment while detained, coercive interrogations, and delay in having his status determined. Furthermore, even if he is acquitted of the charges he faces before the Military Commission, he can be detained indefinitely.

Conclusion

Omar Khadr has been though hell because he was a child soldier fighting for a military force in a foreign civil war that the United States refuses to recognize as a legitimate military force, at the behest of his father. If he had fought in the same war for a different unit within the same insurgency that was associated with the Taliban, and had worn a uniform, he would have been a prison of war entitled to special protections under international law as a child soldier. But, this isn't how civil war is conducted in Afghanistan.

The legal system he is being tried in fails to meet any recognizable standards of military or criminal justice. Every player in the legal process in his case has been subjected to questionable political interference.

Khadr has been detained for almost six years, which is longer than some U.S. troops who commited war crimes in Iraq and Vietnam that caused death have been sentenced to in U.S. courts-martial, under conditions that do not meet international standards or U.S. constitutional standards for human rights. The death penalty has not been ruled out for him, despite the fact that the events in question took place when he was 15 years old.

This case has not, and will not, make Americans safer. The connection between his participation in an Afghan civil war, and the 9-11 attacks on the United States, is remote. This is not the sort of case where punishing an opponent is so important that our national honor should be sacrificed in the process. He is not a big fish. He is guilty of being an ordinary low level soldier in an insurgency, like thousands of men now held captive in Iraq and Afghanistan have done in the course of the U.S. involvement in wars there. But they have not faced similar treatment, and we do not claim that the other soldiers killed in the Iraq War and war in Afghanistan have been denied justice as a result. The person who killed the soldier whose death this case seeks to vindicate is probably dead already anyway.

Many of the other Guantanamo Bay defendants facing Military Commission trials are similarly small fry bit players in a larger civil war that they signed up to participate in before the United States was involved. The process, moreover, is so tainted that it cannot legitimately condemn even genuine senior masterminds of terrorist attacks against the United States, as a handful are alleged to be.

There are a lot of law review articles and op-ed opinions that argue that Military Commissions are a necessary compromise in an age of terrorism. The United States has tried the idea now. It failed to deliver anything it promised to do and has impaired the national security of the United States and its ability to effectively fight terrorism. Fighting terrorism is first and foremost about being able to secure cooperation by holding the moral high ground. President Bush and his lackeys forfeited the moral high ground at Guantanamo Bay and in doing so, have put us all at risk.

Moving Gitmo To Afghanistan?

The U.S. is building a new prison, in Afghanistan, for up to 1100 terrorists and terrorism suspects. The existing prison, in Bagram air base, holds 610 inmates. Apparently, the U.S. wants to transfer the 270 prisoners held at the at Guantánamo Bay, Cuba prison.

From here.

Given the source, I'd count this as a credible rumor, but not a sure thing.

Gitmo Cases Back In Play

In a startling turn of events in the legal combat over the war on terrorism, the Supreme Court on Friday agreed to reconsider the appeals in the Guantanamo Bay detainee cases. It vacated its April 2 order denying review of the two packets of cases. The Court then granted review, consolidated the cases, and said they would be heard in a one-hour argument in the new Term starting Oct. 1. Such a switch by the Court -- from denial to rehearing and new argument and decision -- may not have occurred since 1947, in Hickman v. Taylor, 329 U.S. 495, legal sources said Friday.

Someone convinced Justice Kennedy to change his mind. Assuming that the four liberals on the Court are the other people who voted to change course on these cases, this is very good news indeed. The grant's support from high court liberals presumably flows from the belief that Kennedy will vote the right way in this case.

Personally, I cynically suspect that the announcement in the Washington Post that the administration is seriously considering abandoning Gitmo all together is as important as the new legal developments in the matter. I also cynically suspect that sometime around September 2007 that the administration will moot the case by shutting down the base after all.

Victim or Criminal?

A Canadian boy who was detained at Guantanamo Bay starting at age 15 was tried as a war criminal in a U.S. military tribunal. The charges against him were dismissed on procedural grounds, but are likely to be reinstated. The notion that a 15 year pushed into military service as a child soldier is a victim, rather than a criminal has escaped the Department of Defense.

Also, unless the military is seeking to execute the boy (and the Department of Defense has publicly stated it seeks a sentence of less than life imprisonment), now 20, what is at stake? He is already detained indefinitely, and has been incarcerated in an exceptional military prison for five years. According to the New York Times (link in the link above), quoting his attorneys, "prosecutors . . . included in their charges acts that occurred when Mr. Khadr was younger than 10."

U.S. involvement in Afghanistan, where the boy was apprehended did not begin until late 2001, when the boy was 14 years old. The Military Commissions Act, making conspiracy, whcih is one of the charges against the boy a war crime, was not enacted until 2006.

The Canadian public is aware of the case and not impressed. Considering that Canada is one of the main U.S. allies in Iraq, this may be bad foreign policy, as well as an injustice.

The Trouble With Gimo

Ben Wizner, of the ACLU, sucinctly sums up what the David Hicks plea bargain tells us about what kind of justice exists in the Bush Administration's military tribunal systems:

The defendant traveled to Pakistan and Afghanistan, joined with extremists and was captured in December 2001. Defense Secretary Donald H. Rumsfeld later said he was among the world's most dangerous terrorists. . . . Last Friday night, after a jury of senior military officers sentenced Hicks to seven years in prison, we all learned the details of that agreement: Hicks will serve a mere nine months — a sentence more in keeping with a misdemeanor than with a grave terrorist offense.

This stunning turn of events highlights a cruelly ironic feature of detention at Guantanamo. In an ordinary justice system, the accused must be acquitted to be released. In Guantanamo, the accused must plead guilty to be released — because even if he is acquitted, he remains an "enemy combatant" subject to indefinite detention. Only by striking a deal does a detainee stand a chance of getting out.

And so, the lone Guantanamo detainee who has admitted guilt will be in Australia within 60 days and free before the end of the year. Meanwhile, about 385 others who have not been accused of a crime may remain in detention until the cessation of hostilities in the "war on terror" — a distant abstraction, not an actual event. . . .

Moreover, in a highly unusual provision, the agreement requires that Hicks not speak to the media for a year. Gag rules are not imposed to prevent people from telling lies; they are imposed to prevent people from telling the truth — in this case, how Hicks was treated after his capture and during his detainment.

We all knew that George W. Bush had New England roots. But, few of us realized that those ties went straight back to Salem.

Listening To The Wrong People On Gitmo

The Denver Post, citing the New York Times as its source, argues that Guantamo Bay remains open because President Bush has relied on two of the least well regarded members of his administration for advice.

President Bush should have listened to Robert Gates in January as the newly appointed defense secretary repeatedly urged that the American prison in Cuba be shut down as quickly as possible. The facility holds nearly 400 detainees, suspected in some way of being complicit with terrorists.

Gates argued the prison had such a tainted reputation abroad that any legal proceedings held there would be seen as compromised. It was a view supported by Secretary of State Condoleezza Rice and other officials who discussed moving Guantanamo detainees to U.S. military brigs. . . .

[I]n the end, objections by Attorney General Alberto Gonzales and Vice President Dick Cheney carried the day . . . and the prison remains open.

Why is it so hard for President Bush to realize that he should listen to his own Secretary of Defense and Secretary of State, rather than to his disgraced Vice President and Attorney General, in matters of national security?

Alberto Gonzales has lost the support of almost every Democrat in Congress (he did't have support from many of them in the first place), and a number of Republicans in Congress, because documents disclosed by the Justice Department make clear that he lied to Congress about the dismissal of eight U.S. Attorneys. The Inspector General of the Justice Department has revealed that while Gonzales has been AG, the Justice Department routinely broke the law by spying on American citizens even though their powers to do so legally were greatly expanded by the PATRIOT Act. Even his staunchest supporter, Colorado's own Ken Salazar, has been forced to start to come to terms with the fact that his friend is a crook.

Dick Cheney is one of the least popular men in the United States today. According to a CBS News/New York Times Poll taken March 7-11, 2007 of 1,362 registered voters, just 18% have a favorable opinion of the Vice President, while 48% have an unfavorable opinion of him. His Chief of Staff, Scotter Libby, is a convicted felon. There is a strong implication that Libby leaked a covert agent's identity at the behest of his boss. Cheney has been the strong voice in the administration for torture and against the rule of law, from the beginning. He's offered to resign, but the President, unwisely, didn't take him up on the offer.

President Bush is not innocent. The better angels of his administration have repeatedly and resolutely urged him to do the right thing. He received a bold warning that an attack on Americans by Osama bin Laden was coming and did nothing. The CIA and State Department told him that the aftermath of the Iraq invasion would turn out as it in fact has turned out. His generals told him that they didn't have enough troops at the beginning of the Iraq War to conduct it properly. High officials in the administration have told him that his regime of torture and extralegal detention to fight a "war on terrorism" was wrong and perhaps even made him a war criminal. He has remained determined in the face of advisors giving him the chance to do the right things, to instead harm our country.

Government Loses Hamdan Case

The Hamdan case addressed the rights of people detained as enemy combatants at Guantanamo Bay when tried for crimes beyond merely being detained, a detention which was itself upheld. The U.S. Supreme Court ruled against many key parts of the Bush Adminisration's enemy combatant doctrine. The main ruling was 5-3 with Justice Roberts who ruled in favor of the government in the U.S. Court of Appeals before he was appointed, not participating. Justice Kennedy, part of the majority, concurred in only part of the primary opinion by Justice Stevens. SCOTUS Blog has a syllabus of the decision. The full opinion is here.

The Court expressly declared that it was not questioning the government's power to hold Salim Ahmed Hamdan "for the duration of active hostilities" to prevent harm to innocent civilians. But, it said, "in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction."

Basically, the Court's main opinion held that:

1. The government can try Hamdan, but must comply with rules essentially identical to courts-martial for U.S. soliders, not the reduced legal protections of the military commissions established by the administration.

2. The Detainee Treatment Act of 2005, which divests the courts of jurisdiction over most Guantanamo detainee appeals did not apply to pending cases. And, it ruled out refraining from addressing the case out of a generalized deferrence to the President in military affairs, or because the commission had not reached a final verdict.

3. Neither the Detainee Treatmen Act of 2005, nor the Authorization for Use of Military Force following 9-11, which was used as the basis for the war in Afghanistan authorized the creation of military commissions which were contrary to the Uniform Code of Military Justice and the Geneva Conventions. But, the commissions created by the President violated both the UCMJ and Geneva.

4. Military commissions and courts-martial must comply with the Geneva Conventions, at the very least, because they are part of the laws of war, which the UCMJ provides must be considered.

5. Common Article 3 of the Geneva Conventions, at least, applies to the war with al Qaeda, which is not a Convention signatory.

6. Common Article 3 includes: "a prohibition on 'the passing of sentences … without previous judgment … by a regularly constituted court affording all the judicial guarantees … recognized as indispensable by civilized peoples.'"

7. As an aside, Common Article 3 also "provides that detained persons 'shall in all circumstances be treated humanely,' and that '[t]o this end,' certain specified acts 'are and shall remain prohibited at any time and in any place whatsoever'—including 'cruel treatment and torture,' and 'outrages upon personal dignity, in particular humiliating and degrading treatment.' This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment." This means that the President's treatment of many terrorism suspects was illegal. But, it does not clarify how detainees may go about enforcing this right. For example, do they have a private right of action to enforce it? The other part of Common Article 3, in contrast, is enforceable through the UCMJ courts-martial process through additional Congressional action in the form of express adoption of the "laws of war" as part of the rules of courts-martial.

8. Specific problems with the military commissions include: (a) the use of evidence kept secret for the defense, (b) a lack of real limits on evidence that the commission may consider, (c) the UCMJ requires its proceedures to be applied, if practicable, to trials of detainees in commissions, but the administration has failed to show good cause for deviating from those procedures, and (d) in the sense of the Geneva Conventions it is not a "regularly constituted court affording judicial guarantees."

In a part of the opinion not joined by Justice Kennedy, Justice Stevens stated:

1. The conspiracy crime with which Hamdan has been charged cannot be brought because it is not part of the law of war.

2. "[A]n accused must, absent disruptive conduct or consent, be present for his trial and must be privy to the evidence against him." If he is not, the commission violates the Geneva Conventions.

Meanwhile:

Justice Kennedy, agreeing that Hamdan’s military commission is unauthorized under the Uniform Code of Military Justice, 10 U. S. C. §§836 and 821, and the Geneva Conventions, concluded that there is therefore no need to decide whether Common Article 3 of the Conventions requires that the accused have the right to be present at all stages of a criminal trial or to address the validity of the conspiracy charge against Hamdan.

The exact status of this part of the ruling is not exactly clear. While Kennedy didn't join it, he didn't dissent. So, is this a 4-4 ruling, or a 4-3 ruling? This will only come up when new charges using a court-martial procedure are used, and only if the Bush Administration goes this route. The secret evidence holding probably is moot if a court-martial procedure is used. The conspiracy holding, in contrast, is central to any result, since this is a charge against all of the military commission defendants, and the only charge against many of them. To the extent that the issue is not decided in this case, there are at least four votes to say that conspiracy charges are not permitted, and probably four votes to say that they are permitted, leaving Kennedy as the swing vote if the issue returns to the U.S. Supreme Court.

Bottom line: The Bush Administration's military commissions in Guantanamo Bay are kangaroo courts. But, Gitmo can stay, if it stops engaging in torture and near torture.