Wrangling over rights of Guantanamo detainees

Wow! There must not have been anything much in the way of rights for enemies seized in "war" in the newly formed US.
The government argued before Supreme Court justices that more than 300 Guantanamo Bay detainees have enjoyed greater rights than ever envisioned in such circumstances by the country's founding fathers.



Maybe the founding fathers would have thought that unlawful combatants were equivalent to slaves since they had not invented that convenient conceptual excuse (unlawful combatants) for depriving persons of basic rights. Hilary Clinton clowns around suggesting that it is important that they have the right person in custody not mentioning at all the right of habeas corpus or to challenge detention in any other way except as being the wrong person.
Some of the cases listed show what a travesty of even the most elementary justice the whole setup is.


Wrangling over rights of Guantanamo detainees
TheStar.com - World - Wrangling over rights of Guantanamo detainees

December 06, 2007
Tim Harper
WASHINGTON BUREAU

WASHINGTON – Almost six years after the first terror suspects were shipped to Guantanamo Bay, the top U.S. court yesterday revisited arguments on what has become the defining human rights issue of the George W. Bush era.

The government argued before Supreme Court justices that more than 300 Guantanamo Bay detainees have enjoyed greater rights than ever envisioned in such circumstances by the country's founding fathers.

But the lawyer representing detainees pleaded for their right to challenge detentions that have dragged on year after year with no independent arbiter allowed to rule on the legality of their imprisonment.

The court was hearing a Guantanamo Bay case for the third time and the justices were deeply engaged and perhaps deeply divided, peppering lawyers from both sides with pointed questions.

The collision of liberties and security and the basic question at issue – whether detainees should be allowed to challenge their detention before U.S. courts – spilled out onto the sidewalks in front of the Supreme Court building and into the U.S. presidential campaign.

Demonstrators dressed in orange prison garb stood outside on a snowy Washington morning and hundreds waited in line for hours to grab a seat in the courtroom.

Yesterday's hearing could ultimately have an impact on the case of Omar Khadr, the only Canadian held at Guantanamo Bay, but his case is more complex because he is one of only three detainees formally charged and facing a trial under military rules.

His lawyers filed a court brief urging the justices not to issue a ruling dealing with those who have not been charged that would "limit or jeopardize" the same rights of those facing formal charges.

The Pentagon has said it has plans to charge no more than 80 of the estimated 305 detainees who remain at the Cuban military base.

U.S. Solicitor General Paul Clement told the nine-member court that Guantanamo detainees have enjoyed the fruits of a "remarkable liberalization" of original U.S. law that enshrined the legal right known as habeas corpus.

But Seth Waxman, representing some 37 detainees, argued the U.S. Congress wrongly stripped the prisoners of their rights when it passed legislation in late 2006 creating military tribunals.

He said those detainees have been confined at Guantanamo for almost six years, "yet not one has ever had meaningful notice of the factual grounds of detention or a fair opportunity to dispute those grounds before a neutral decision-maker."

Among those defended by Waxman are six Algerians who were legal residents in Bosnia when they were captured by the Bosnian military a month after the Sept. 11, 2001 terror attacks on suspicion of plotting an attack on the U.S. embassy in Sarajevo.

The Bosnian high court ordered them released for lack of evidence, but the military immediately recaptured them and handed them over to the U.S. military, which shipped them to Guantanamo where they have languished for six years.

"These men (were) taken by the United States thousands of miles away ... plucked from their wives and children in Sarajevo," Waxman said.

Waxman also cited the case of Murat Kurnaz, a German man who was detained at Guantanamo for four years even though U.S. investigators found he had no links to Al Qaeda.

The case, reported yesterday by The Washington Post, spotlighted the flaws in the military tribunals because he was told very little of the evidence against him when he was deemed an enemy combatant.

The top court has ruled against Bush twice, first in June 2004, when it famously clipped the president's executive power and declared detainees' fates could be decided only by the judicial branch, not the presidency.

Then in 2006 the court ruled the military commissions established by the Bush administration were illegal because the president had acted without congressional approval.

In the days before the 2006 mid-term elections, with the Republican congressional majority on its deathbed, U.S. legislators responded by passing the Military Commissions Act, which established the military panels but also stripped the prisoners of their basic habeas corpus rights, or their rights to have their case heard by a U.S. judge.

The top court at first refused to hear another appeal challenging the will of Congress, but surprisingly reversed itself last summer.

"Congress has spoken," Clement said yesterday.

Waxman, a solicitor general in the Bill Clinton government, said prisoners have been kept in isolation for six years while the courts, Congress and the military have wrangled over how best to deal with them. "The time for experimentation is over," he said.

On the campaign trail, Hillary Clinton, who is seeking the Democratic presidential nomination, said the U.S. must not indefinitely detain anyone without a safeguard that ensures the proper person is being detained.

"This is one of the bedrock principles enshrined in our constitution," Clinton said, "it is the way our founders believed we could be secure against those who would abuse government power."

A leading Republican presidential candidate, former Massachusetts governor Mitt Romney, saw the hearing as an opportunity to restate his commitment to keep Guantanamo Bay open if he is elected.

"Some people view Guantanamo as a symbol of American aggression," he said in a statement. "I view it as a symbol of American resolve. So long as it remains a vital tool to keep America safe, I will fight to keep Guantanamo Bay open."

Guantamo military lawyer breaks ranks.

This is from the Independent. It is always heartening to see people who have the integrity, courage, and belief in the principles of their profession to stand up to the sort of bullying and violation of basic legal principles that is characteristic of the Bush administration. No doubt these people often face punishment and ruin of their careers.


Guantanamo military lawyer breaks ranks to condemn 'unconscionable' detention
By Leonard Doyle in Washington
Published: 27 October 2007
An American military lawyer and veteran of dozens of secret Guantanamo tribunals has made a devastating attack on the legal process for determining whether Guantanamo prisoners are "enemy combatants".

The whistleblower, an army major inside the military court system which the United States has established at Guantanamo Bay, has described the detention of one prisoner, a hospital administrator from Sudan, as "unconscionable".

His critique will be the centrepiece of a hearing on 5 December before the US Supreme Court when another attempt is made to shut the prison down. So nervous is the Bush administration of the latest attack – and another Supreme Court ruling against it – that it is preparing a whole new system of military courts to deal with those still imprisoned.

The whistleblower's testimony is the most serious attack to date on the military panels, which were meant to give a fig- leaf of legitimacy to the interrogation and detention policies at Naval Base at Guantanamo Bay. The major has taken part in 49 status review panels.

"It's a kangaroo court system and completely corrupt," said Michael Ratner, the president of the Centre for Constitutional Rights, which is co-ordinating investigations and appeals lawsuits against the government by some 1,000 lawyers. "Stalin had show trials, but at Guantanamo they are not even show trials because it all takes place in secret."

Combatant Status Review Tribunals were held for 558 detainees at the Guantanamo in 2004 and 2005. All but 38 detainees were determined to be "enemy combatants" who could be held indefinitely without charges. Detainees were not represented by a lawyer and had no access to evidence. The only witnesses they could call were other so-called "enemy combatants".

The army major has said that in the rare circumstances in which it was decided that the detainees were no longer enemy combatants, senior commanders ordered another panel to reverse the decision. The major also described "acrimony" during a "heated conference" call from Admiral McGarragh, who reports to the Secretary of the US Navy, when a the panel refused to describe several Uighur detainees as enemy combatants. Senior military commanders wanted to know why some panels considering the same evidence would come to different findings on the Uighurs, members of a Muslim minority in China.

When the whistleblower suggested over the phone that inconsistent results were "good for the system ... and would show that the system was working correctly", Admiral McGarragh, he said, had no response. The latest criticism emerged when lawyers investigating the case of a Sudanese hospital administrator, Adel Hamad, who has been held for five years, came across a "stunning" sworn statement from a member of the military panel. The officer they interviewed was so frightened of retaliation from the military that they would not allow their name to be used in the statement, nor to reveal whether the person was a man or woman.

Two other military lawyers have also gone public. In June, Army Lt-Col Stephen Abraham, a 26-year veteran in US military intelligence, became the first insider to publicly fault the proceedings. In May last year, Lt-Com Matthew Diaz was sentenced to six months in prison and dismissed from the military after he sent the names of all 551 men at the prison to a human rights group.

William Teesdale, a British-born lawyer investigating Mr Hadad's case, said he was certain of his client's innocence, having tracked down doctors who worked with him at an Afghan hospital. "Mr Hamad is an innocent man, and he is not the only one in Guantanamo."

War-crimes Prosecutor Quits in Pentagon Clash

This story reveals how cooked up and compromised the Guantanamo trial system is. This sort of thing makes a laughing stock of the US claim that it stands for the rule of law. The Colonel who resigned was resisting attempts to make the trials even more transparently unjust and a kangaroo court but to no avail. Hartman apparently cares not a whit that he will go down in history as being part of this travesty of justice. Well who knows how future history will be rewritten.

War-Crimes Prosecutor Quits in Pentagon Clash


By WILLIAM GLABERSON
Published: October 6, 2007
In the latest disruption of the Bush administration’s plan to try detainees at Guantánamo Bay, Cuba, for war crimes, the chief military prosecutor on the project stepped down yesterday after a dispute with a Pentagon official.

» It was not clear what effect the departure would have on the problem-plagued effort to charge and try detainees.

The prosecutor, Col. Morris D. Davis of the Air Force, was to leave his position immediately, a Defense Department spokeswoman said. But the spokeswoman, Cynthia O. Smith, said officials were working to minimize interruption in the work of the prosecution office, which includes military lawyers supplemented by civilian federal prosecutors.

“The department is taking measures to ensure a prompt and orderly transition to another chief prosecutor without interrupting the key mission of prosecuting war crimes via military commissions,” Ms. Smith said.

The Wall Street Journal reported yesterday that Colonel Davis would resign.

The Pentagon’s system of prosecuting suspects has been beset by practical problems and legal disputes that have reached the Supreme Court. As a result, more than five years after the first terror suspects arrived at Guantánamo Bay, only one detainee’s war-crimes case has been completed, and that was through a plea agreement.

Prosecutors have said they might eventually file charges against as many as 80 of the 330 detainees being held at Guantánamo. Those include so-called high value detainees, 14 men the administration has said include dangerous terrorists who had previously been held in secret C.I.A. prisons.

Officials have said the prosecutors are working on charges against some of those men, including Khalid Shaikh Mohammed, who has said he was the mastermind of the terrorist attacks of Sept. 11, 2001.

Colonel Davis, a career military lawyer, had been in a bitter dispute with Brig. Gen. Thomas W. Hartmann, who was appointed this summer to a top post in the Pentagon Office of Military Commissions, which supervises the war crimes trial system.

General Hartmann, an Air Force reserve officer who worked as a corporate lawyer until recently, was appointed this summer as the legal adviser to Susan J. Crawford, a former military appeals judge who is the convening authority, a military official who has extensive powers under the military commission law passed by Congress in 2006.

Among other powers, under the law, the convening authority can approve or reject war-crimes charges, make plea deals with detainees and reduce sentences.

People involved in the prosecutions, who spoke on condition of anonymity, have said that General Hartmann challenged Colonel Davis’s authority in August and pressed the prosecutors who worked for Colonel Davis to produce new charges against detainees quickly.

They said he also pushed the prosecutors to frame cases with bold terrorism accusations that would draw public attention to the military commission process, which has been one of the central legal strategies of the Bush administration. In some cases the prosecutors are expected to seek the death penalty.

Through a spokeswoman, General Hartmann declined comment yesterday.

Colonel Davis filed a complaint against General Hartmann with Pentagon officials this fall saying that the general had exceeded his authority and created a conflict of interest by asserting control over the prosecutor’s office. Colonel Davis said it would be improper for General Hartmann to assess the adequacy of cases filed by prosecutors if the general had been involved in the decision to file those cases.

In a statement last week, Colonel Davis said the issue posed a threat to the integrity of the war-crimes process. “For the greater good, Brigadier General Hartmann and I should both resign and walk away or higher authority should relieve us of our duties,” the statement said.

A military official said yesterday that Pentagon officials had sided with General Hartmann in the dispute.

Yesterday, Colonel Davis said he could not discuss the developments. “I’m under direct orders,” he said, “not to comment with the media about the reasons for my resignation or military commissions.”

Gregory S. McNeal, an assistant professor at the Dickinson School of Law at Pennsylvania State University, said the effort to begin war-crimes trials would probably continue. But Mr. McNeal, who has been a consultant to the military prosecutors, said the questions Colonel Davis raised would be exploited by defense lawyers.

“The last thing the prosecution needs is officials influencing the prosecutions,” he said.

Critics of the administration have argued that the effort to design a military commission system for foreign terror suspects is intended to circumvent the legal protections that detainees would receive if they were charged in civilian courts. Some of those critics said yesterday that the dispute underscored their concerns.

“This is further evidence that the military commission process is completely unraveling,” said J. Wells Dixon, a detainees’ lawyer at the Center for Constitutional Rights in New York.

“That is endemic,” Mr. Dixon added, “to any system that is made up as you go along.”

Guantanamo Judge dismisses two cases

A sample article on the event is here.

According to the article there is no one at Guantanamo categorised as an UNLAWFUL enemy combatant. They are simply categorised as enemy combatants. However the legislation on Military Commissions covers only unlawful enemy combatants. Just how can legal experts make such a transparent obvious error? I expect it is only by being incompetent and not bothering to check what the actual descriptions of the prisoners in Guantanamo. One case the of Hicks has already concluded and he is serving a sentence in Australia. He is not going to appeal his case since at least with his present sentence he knows when he will be freed. The two whose cases were dismissed in Guantanamo will not be freed. They could simply be kept forever as far as the US regards the law!
I wonder if anything will happen to the judge who ruled that he did not have jurisdiction to hear the cases? You would think that he might have alerted someone before actually making the decision. Perhaps the prisoners will just go through another classification and come out suitably branded as UNLAWFUL.