[AlexBolduin]

August 1, 2005
Who We Are

By BOB HERBERT

You won't find many people willing to accuse John McCain, John Warner or Lindsey Graham of being soft on terrorism. But the three Republican senators are giving the White House fits with their attempt to get legislation approved that would expressly prohibit cruel, inhumane or degrading treatment of detainees in U.S. custody.

There was a dramatic encounter during the floor debate last week when Senator Jeff Sessions, a Republican from Alabama, spoke out against the legislation, saying there was no need for it because, as he put it, the detainees are not prisoners of war, "they are terrorists."

Senator McCain, of Arizona, argued that the debate "is not about who they are. It's about who we are." Americans, said Mr. McCain, "hold ourselves" to a higher standard.

The stakes in this confrontation are high. Senators McCain, Warner and Graham are all influential members of the Armed Services Committee (Senator Warner is the chairman), and they have introduced the legislation in the form of amendments to the nearly half-trillion-dollar Pentagon authorization bill for fiscal 2006.

That such an initiative would come from high-ranking, hawkish Republicans is extraordinary, and the White House is not happy about it. In addition to prohibiting cruel and degrading treatment, the legislation would restrict military interrogation techniques to those authorized in a new Army field manual.

The senators seemed clearly to have been moved by the dismay expressed by current and former members of the military over the lack of uniform standards for the treatment of detainees. Many have argued that the lack of standards and clear guidance from the highest levels of government have led inexorably to abuses.

Senator McCain has been the point person on the legislative amendments, and his office has released a letter from more than a dozen retired officers, including generals, admirals and former prisoners of war, offering support for his effort to establish standards designed to rein in the abusive treatment of prisoners.

The letter said, in part, "The abuse of prisoners hurts America's cause in the war on terror, endangers U.S. service members who might be captured by the enemy, and is anathema to the values Americans have held dear for generations."

Senator Graham, who is from South Carolina, successfully sought the declassification and release of memos from current high-ranking military lawyers who were critical of the legal interpretations by the Bush administration that led to the harsh interrogation policy at Guantánamo. One of the memos, from Maj. Gen. Jack Rives, deputy judge advocate general of the Air Force, said, "Several of the more extreme interrogation techniques, on their face, amount to violations of domestic criminal law" as well as military law.

The White House has fought intensely, but so far unsuccessfully, against this revolt in the usually steadfast Republican ranks. Vice President Dick Cheney, in a meeting with Senators Warner, McCain and Graham, said the legislation would interfere with President Bush's ability to fight terrorism. He was not able to change their minds.

Unable to fend off the amendments, the Senate majority leader, Bill Frist, put off further consideration of the defense bill until September. Senator McCain and his allies will try to build further support for the amendments during that period. The White House has threatened to veto the defense bill if the amendments are approved.

We should take a moment, however this debate turns out, to applaud the effort by three Republican senators to stand up to the White House and insist that the United States not just fight harder than its enemies, but also stand taller. No one should be surprised that these voices of reason are coming from men experienced in the ways of war. Senator McCain was a P.O.W. for five years in Vietnam. Senator Graham spent many years as an Air Force lawyer. And Senator Warner is a veteran of World War II and Korea.

A few days ago I spoke with John Hutson, a former admiral who is now president of the Franklin Pierce Law Center in Concord, N.H. He was one of the signers of the letter to Senator McCain. He stressed that this is a very big issue for the country. If the United States fails to get its act together with regard to the humane treatment of detainees, he said, we will "have changed the DNA of what it means to be an American."

E-mail: bobherb@nytimes.com

• Copyright 2005 The New York Times Company

[MADwanker]

November 10, 2003

Supreme Court Takes First Case on Guantánamo Detainees

By DAVID STOUT

WASHINGTON, Nov. 10 — The Supreme Court entered a fundamental debate between individual liberty and national security today by agreeing to consider whether prisoners held by the United States since the war in Afghanistan can challenge their imprisonment in American courts.

The justices agreed to hear appeals filed on behalf of two groups of detainees at the United States naval base at Guantánamo Bay, Cuba. The cases have been brought on behalf of 12 Kuwaitis, 2 British citizens and 2 Australians.

The prisoners are among more than 600 being held as suspected Taliban or Al-Qaeda members. They were swept up by American forces in Afghanistan or Pakistan in the campaign to topple the Taliban government in Afghanistan after the Sept. 11, 2001, terror attacks on the United States.

Lower courts have held that the prisoners cannot use American courts to challenge their incarceration because the United States has no legal jurisdiction over the Navy base, which it has leased from Cuba for more than a century.

In so ruling, the courts have in effect deferred to the Bush administration on actions it has taken in the name of national security since the attacks that killed nearly 3,000 people, more than died at Pearl Harbor.

"Cuba — not the United States — has sovereignty over Guantánamo Bay," the United States Court of Appeals for the District of Columbia Circuit ruled last March, upholding a district court ruling. For that reason, the appeals court concluded, American courts are not open to the detainees. Lawyers for the detainees have asserted that the United States does have sovereignty over Guantánamo, since it controls the 45-square-mile base.

The Supreme Court will decide, probably next year, whether the District of Columbia Circuit was right. But the comments of lawyers on both sides suggest that the justices will be asked to decide something of more transcendent importance.

"In times of war, the president must be able to protect our nation from enemies who seek to harm innocent Americans," Attorney General John Ashcroft said last March in praising the circuit court conclusion.

Solicitor General Theodore B. Olson had urged the Supreme Court not to hear the Guantánamo detainees' appeal. His brief argued that the circuit court had properly interpreted a 53-year-old Supreme Court precedent to hold that "aliens detained by the military abroad" have only those rights that are "determined by the executive and the military, and not the courts." (Mr. Olson's wife, Barbara, was killed in the hijacked airliner that struck the Pentagon on Sept. 11, 2001.)

The Center for Constitutional Rights, in New York, took a contrary position. "For over a year and a half, hundreds of people have been imprisoned in Guantánamo without charges, access to lawyers or to their families," the center's president, Michael Ratner, argued. "This lawless situation must not continue. Every imprisoned person should have the right to test the legality of their detention. It is this basic principle that has been denied to our clients and it is this denial that we want the Supreme Court to review."

The center's assistant legal director, Barbara Olshansky, said: "Never has America taken the public position that it is not bound at all by the rule of law. Such a dangerous and immoral principle should not be established now."

The cases are Rasul v. Bush, 03-334 and Al Odah v. United States, 03-343.

Lawyers on behalf of the detainees whose cases will be reviewed argued that they "are not, and have never been, members of Al Qaeda or any other terrorist group" and never plotted against the United States.

The justices also declined to take another case today, an appeal from an Islamic charity, the Illinois based Global Relief Foundation, whose assets were impounded three months after the 2001 terror attacks. The United States and other governments have frozen the assets of several groups they say assist groups like Al Qaeda.

The outcome of the Guantánamo case may not be known for many months. And it may be years before it becomes clear whether some of the measures imposed after the Sept. 11 attacks were necessary to protect the security of the United States — or if they will be regretted by later generations of Americans, as the World War II detainment of Japanese-Americans has been.

"We hope that the Supreme Court will bring an end to the legal black hole into which the Guantánamo detainees have been thrown and ensure justice for them and their families," Amnesty International said in a statement today.


Copyright 2003 The New York Times Company

[addisonnicogel]

December 4, 2003

NEWS ANALYSIS

Sudden Shift on Detainee

By NEIL A. LEWIS

WASHINGTON, Dec. 3 — When the Pentagon said this week that it would let an American being held as an enemy combatant meet a lawyer, which it had refused to do for months, it appeared on the surface to be a major concession to the critics of the policy of detaining terrorism suspects.

But it may be that the action was less of a substantive change than merely a calculated gesture to help the administration shield its policies from criticism and reversal by the courts. The American, Yaser Esam Hamdi, a Louisianan of Saudi descent captured in fighting in Afghanistan, is under indefinite detention in a Navy brig in Charleston, S.C.

Viet Dinh, a former assistant attorney general who had a major role in drafting antiterror policies, said in an interview on Wednesday that the decision to give Mr. Hamdi access to a lawyer was "a significant development in the case, one that moves the government to a more sustainable position before the court."

But Mr. Dinh, who has returned to his professorship at the Georgetown University Law School, also said the administration needed to provide some better form of due process "to make its case bulletproof."

The Pentagon made its statement about Mr. Hamdi's ability to confer with a lawyer a day before the Justice Department was obliged to file a brief with the Supreme Court asking it to uphold a ruling by an appeals court that President Bush was within his rights as a wartime president to detain Mr. Hamdi indefinitely without access to a lawyer.

The brief itself, however, does not retreat from the hard-line position the administration has taken all along, that the president has the authority to detain an American citizen indefinitely without consulting a lawyer.

The administration does not concede in the brief that it has any obligation to allow Mr. Hamdi to meet with his lawyer, Frank W. Dunham Jr., the federal public defender in Virginia, although a footnote in the brief does say the two will soon be able to meet.

The Pentagon explicitly said its decision was at its discretion and was taken only because intelligence officials had finished questioning Mr. Hamdi and no longer felt the need to keep him incommunicado.

"They are trying to change at least the perception of unfairness that existed and show that they are giving this U.S. citizen some kind of rights," Pamela S. Falk, a professor of international law at the City University of New York, said. "This is clearly an attempt to defuse some of the reasonable fear among the public that the government was seeking extraordinary new powers to detain citizens in the war against terrorism."

The president of the American Bar Association, Dennis W. Archer, said on Wednesday that although he was encouraged at the decision to let Mr. Hamdi see his lawyer, he was disappointed that the Pentagon said it was doing so only as a discretionary matter and not setting a precedent.

Nonetheless, the permission may help the government's case in the Supreme Court. The Supreme Court case involves not only the issue of whether an enemy combatant may consult with a lawyer, but also whether the combatant may be detained solely on the assertion of the president and the executive branch with no recourse to judicial review.

Professor Dinh has suggested since leaving the government that the process needs to be reviewed.

"Two years into the war against terror, along with the luxury of the relative safety that the administration has provided, has afforded an opportunity to have a conversation about a more systematic and sustainable set of procedures" for enemy combatants, he said.

Those comments underline the fact that allowing Mr. Hamdi to see his lawyer does not necessarily mean anything will come of it. The administration still contends in its brief that Mr. Hamdi is not entitled to challenge his detention nor his designation as an enemy combatant.

A second senior former official in the Justice Department, Judge Michael Chertoff, has also called for new methods of dealing with enemy combatants' rights of due process. Judge Chertoff, who was the assistant attorney general in charge of the criminal division, is on the United States Court of Appeals for the Third Circuit, in Philadelphia.

A senior administration official said on Wednesday that letting Mr. Hamdi see a lawyer did not represent a stark change, because the government has always contended that detainees needed to be kept in isolation only until their questioning had ended. The administration first hinted at that view publicly last month, when it argued before a federal appeals court in New York that Jose Padilla, another American held as an enemy combatant, might be permitted to see a lawyer when his questioning had ended.

The administration has argued that letting a detainee consult a lawyer before questioning is complete would render ineffective all efforts to obtain usable information. Not only might a lawyer advise a detainee not to cooperate, but the consultation, officials say, would also disturb the relationship between the detainee and the questioners.

In addition to the decision to let Mr. Hamdi consult his lawyer, the administration has made other seeming concessions to foreign allies as to the circumstances in which their citizens detained at Guantánamo Bay, Cuba, might be tried before military commissions. Last month, Australia said Washington had agreed to allow an Australian defense lawyer meet directly with and participate in the defense of David Hicks, 26, an Australian who joined the Taliban in 1999 and was captured with it. Mr. Hicks, who is at Guantánamo, who may soon face a tribunal.

Australia and Britain have been assured that their citizens will not face the death penalty from any tribunals. At the same time, the administration is negotiating with other governments on their citizens at Guantánamo. Defense Department officials have said they may soon modify some of the rules established for military tribunals to satisfy some foreign critics.

After reaching the accord with Australia, the first foreign government to declare that it was satisfied with the procedures for a military tribunal, the Pentagon said on Wednesday that it had assigned a military lawyer to represent Mr. Hicks, one of six detainees designated eligible for a tribunal.

Pentagon officials acknowledged last weekend that they might soon release many the 660 people detained at Guantánamo. The detention of people, most of whom were captured in Pakistan and Afghanistan at the end of the Afghan campaign, has been a major irritant in relations with foreign governments.


Copyright 2003 The New York Times Company

[casinobonbone]

Supreme Court Blocks Guantánamo Tribunals

NY TIMES
By LINDA GREENHOUSE
June 29, 2006

WASHINGTON, June 29 — The Supreme Court on Thursday repudiated the Bush administration's plan to put Guantánamo detainees on trial before military commissions, ruling broadly that the commissions were unauthorized by federal statute and violated international law.

"The executive is bound to comply with the Rule of Law that prevails in this jurisdiction," Justice John Paul Stevens, writing for the 5-to-3 majority, said at the end of a 73-page opinion that in sober tones shredded each of the administration's arguments, including the assertion that Congress had stripped the court of jurisdiction to decide the case. A principal but by no means the only flaw the court found in the commissions was that the president had established them without Congressional authorization.

• FULL_DECISION

The decision was such a sweeping and categorical defeat for the Bush administration that it left human rights lawyers who have pressed this and other cases on behalf of Guantanamo detainees almost speechless with surprise and delight, using words like "fantastic," "amazing," "remarkable."

Michael Ratner, president of the Center for Constitutional Rights, a public interest law firm in New York that represents hundreds of detainees, said, "It doesn't get any better."

President Bush said he planned to work with Congress to "find a way forward," and there were signs of bipartisan interest on Capitol Hill in crafting legislation that would authorize new, revamped commissions intended to withstand judicial scrutiny.

The courtroom was, surprisingly, not full, but among those in attendance, there was no doubt that they were witnessing a historic event, a definitional moment in the ever-shifting balance of power among the branches of government that ranked with the court's order to President Nixon in 1974 to turn over the Watergate tapes or with the court's rejection of President Truman's seizure of the nation's steel mills, a 1952 landmark decision from which Justice Kennedy quoted at length.

Senator Arlen Specter, the Pennsylvania Republican who is chairman of the Judiciary Committee, introduced a bill immediately and said his committee would hold a hearing on July 11, as soon as Congress returns from the July 4 recess. Mr. Specter said the administration had resisted his effort to propose similar legislation as early as 2002.

Two Republican senators, Lindsey Graham of South Carolina and Jon Kyl of Arizona, said in a joint statement that they were "disappointed" but that "we believe the problems cited by the court can and should be fixed." They added, "Working together, Congress and the administration can draft a fair, suitable, and constitutionally permissible tribunal statute."Both overseas and in the United States, critics of the administration's detention policies praised the decision and urged President Bush to take it as an occasion to shut down the Guantanamo prison camp. "The ruling destroys one of the key pillars of the Guantanamo system," said Gerald Staberock, a director of the International Commission of Jurists in Geneva. He added: "Guantanamo was built on the idea that prisoners there have limited rights. There is no longer that legal black hole."

The majority opinion by Justice Stevens and a concurring opinion by Justice Anthony M. Kennedy, who also signed most of Justice Stevens's opinion, indicated that finding a legislative solution would not necessarily be easy. In an important part of the ruling, the court held that a provision of the Geneva Conventions known as Common Article 3 applies to the Guantanamo detainees and is enforceable in federal court for their protection.

This provision requires humane treatment of captured combatants and prohibits trials except by "a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized people."

The opinion made it clear that while this provision does not necessarily require the full range of protections of a civilian court or a military court martial, it does require observance of protections for defendants that are missing from the rules the administration has issued for military commissions.
The flaws the court cited were the failure to guarantee the defendant the right to attend the trial and the prosecution's ability under the rules to introduce hearsay evidence, unsworn testimony, and evidence obtained through coercion.

Justice Stevens said that the historical origin of military commissions was in their use re as a "tribunal of necessity" under wartime conditions. "Exigency lent the commission its legitimacy," he said, "but did not further justify the wholesale jettisoning of procedural protections."

The majority opinion was also joined by Justices David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer, who wrote a brief concurring opinion of his own that focused on the role of Congress. "The court's conclusion ultimately rests upon a single ground: Congress has not issued the executive a blank check," he said.

The dissenters were Justices Clarence Thomas, Antonin Scalia, and Samuel A. Alito Jr. Each wrote a dissenting opinion. Justice Scalia focused on the jurisdictional issue, arguing that Congress had stripped the court of jurisdiction to proceed with this case, Hamdan v. Rumsfeld, No. 05-184, when it passed the Detainee Treatment Act last December and provided that "no court, justice, or judge" had jurisdiction to hear habeas corpus petitions filed by detainees at Guantanamo Bay. The question was whether that withdrawal of jurisdiction applied to pending cases. The majority held that it did not.

Justice Thomas's dissenting opinion addressed the substance of the court's legal conclusions. In a portion of his opinion that Justices Scalia and Alito also signed, he called the decision "untenable" and "dangerous." He observed that "those justices who today disregard the commander-in-chief's wartime decisions" had last week been willing to defer to the judgment of the Army Corps of Engineers in a Clean Water Act case. "It goes without saying that there is much more at stake here than storm drains," he said.

Chief Justice John G. Roberts Jr. did not take part in the case. Last July, four days before President Bush nominated him to the Supreme Court, he was one of the members of a three-judge panel of the federal appeals court here that ruled for the administration in this case.

In the courtroom on Thursday morning, the chief justice sat silently in his center chair as Justice Stevens, sitting to his immediate right as the senior associate justice, read from the majority opinion. It made for a striking tableau on the final day of the first term of the Roberts court: the young chief justice, observing his work of just a year earlier taken apart point by point by the tenacious 86-year-old Justice Stevens, winner of a Bronze Star for his service as a Navy officer during World War II.

The decision came in an appeal brought on behalf of Salim Ahmed Hamdan, a Yemeni who was captured in Afghanistan in November 2001 and brought to Guantanamo in June 2002. According to the government, he was a driver and bodyguard for Osama Bin Laden. In July 2003, he and five others were to be the first to face trial by military commission. But it was not until the next year that he was formally charged with a crime, conspiracy.

The commission proceeding began but was interrupted when the federal district court here ruled in November 2004 that the commission was invalid. This was the ruling that the federal appeals court, with the participation of then-Judge Roberts, overturned last July.

Lt. Cmdr. Charles Swift, Mr. Hamdan's Navy lawyer, told the Associated Press that he had informed his client about the ruling by telephone. "I think he was awe-struck that the court would rule for him, and give a little man like him an equal chance," Commander Swift said. "Where he's from, that is not true."

The decision contained unwelcome implications, from the administration's point of view, for other legal battles, some with equal or greater importance than the fate of the military commissions themselves.

For example, in finding that the federal courts still have jurisdiction to hear cases filed before this year by detainees at Guantanamo Bay, the justices put back on track for decision a dozen cases in the lower courts here that challenge basic rules and procedures governing life for the hundreds of people confined at the United States naval base there.

In ruling that the congressional "authorization for the use of military force," passed in the days immediately following the Sept. 11, 2001 terrorist attacks, cannot be interpreted to legitimize the military commissions, the ruling poses a direct challenge to the administration's legal justification for its secret wiretapping program.

Representative Adam Schiff, a California Democrat who has also introduced a bill with procedures for trying the Guantanamo detainees, said the court's refusal to give an open-ended ruling to the force resolution meant that the resolution could not be viewed as authorizing the National Security Agency's domestic wiretapping.

Perhaps most significantly, in ruling that Common Article 3 of the Geneva Conventions applies to the Guantanamo detainees, the court rejected the administration's view that the article does not cover followers of Al Qaeda. The decision potentially opened the door to challenges, by those held by the United States anywhere in the world, to treatment that could be regarded under the provision as inhumane.

Justice Stevens said that because the charge against Mr. Hamdan, conspiracy, was not a violation of the law of war, it could not be the basis for a trial before a military commission. Justice Kennedy did not join this section of the opinion, leaving it with only four votes, because he said it was unnecessary given the general finding that the commissions were invalid.

Copyright 2006 The New York Times Company

[adultcheee]

Lt. Cmdr. Charles Swift, Mr. Hamdan's Navy lawyer, told the Associated Press that he had informed his client about the ruling by telephone. "I think he was awe-struck that the court would rule for him, and give a little man like him an equal chance," Commander Swift said. "Where he's from, that is not true."

This is where our strength really lies. This is what we need to build on if we're to win hearts and minds --the only way to prevail.

Betrayal of core American principles lies at the heart of America's newfound weakness instilled by the present administration. They've weakened America and earned us the condemnation of freedom loving people everywhere.

It will be hard to recover.

[PilotJargon]

Great -- and frightening -- article in this week's "The New Yorker": The Hidden Power - A secret architect of the war on terror (not available on-line).

Tells the story of David Addington and outlines the genesis of the Bush policy ("The New Paradaigm") that was taken to account / over-ruled by the SCOTUS.

An interview with Jane Mayer, the author of that article:

Cheney’s Cheney

The NEW YORKER
Issue of 2006-07-03
Posted 2006-06-26

BLAKE ESKIN: Most people have never heard of David Addington. Why is he important enough to be the subject of such an in-depth piece?

JANE MAYER: Addington has been the single most influential legal thinker, according to other Administration lawyers, in shaping the Bush Administration’s legal response to the terrorist attacks of September 11, 2001. He has left almost no paper trail, and has avoided all public scrutiny—as far as I know, he’s granted no interviews to reporters, and he even avoids having his photo taken by the press. It seemed important to me to hold the creator of these policies accountable, so that the public could understand better who is behind them and how he thinks.

How did David Addington get to know Vice-President Cheney, and how long have they worked together?

They met on Capitol Hill in the mid-eighties, when Cheney was a Republican congressman from Wyoming and Addington was a young staff lawyer working for the House Intelligence and Foreign Affairs committees. So they have worked together for about two decades. Their partnership was cemented when they worked together on the Minority Report on the Iran-Contra affair. Both Addington and Cheney took the idiosyncratic position that it was Congress, not President Reagan, that was in the wrong. This view reflected the opinion, held by both men, that the executive branch should run foreign policy, to a great extent unimpeded by Congress. It’s a recurring theme—pushing the limits of executive power and sidestepping Congress—in their partnership. One example is their position that the President, as Commander-in-Chief in times of war, had the inherent authority to ignore the Foreign Intelligence Surveillance Act, which Congress passed in an effort to make sure that Presidents don’t violate citizens’ right to privacy by spying on them without warrants.

After meeting and working together in Congress, Cheney and Addington continued their partnership at the Pentagon, where, during the Presidency of George H. W. Bush, Cheney was Secretary of Defense and Addington was his special assistant and, later, general counsel. There, Addington was known as a powerhouse, a stickler who controlled access to Cheney and marked up others’ memos in red felt-tipped pen, returning the memos for rewrites that would make them sharper—and more protective of executive power.

At the Pentagon, the two exhibited a similar pessimism about world affairs, in particular about the possibility that Mikhail Gorbachev represented true change, and also an unusually deep interest in “continuity of government” planning—how the government survives in the event of a doomsday attack. Addington kept the constitutional provisions for Presidential succession in his pocket at all times, a colleague told me.

Yet you write that some people—including some conservative Republicans—question whether Addington really respects the Constitution.

Some constitutional scholars have questioned whether Addington, in his eagerness to expand the powers of the Presidency, which he and Cheney see as having been unduly diminished since Watergate, gives enough weight to the legislative and judicial branches of the federal government. Some have suggested that he has aggrandized the powers of the President in such a way that the executive branch ignores the system of checks and balances set up by the Founding Fathers, so that its actions are unchecked and unaccountable. Bruce Fein, a Republican legal activist, told me that he regards Addington as an adequate lawyer but an inadequate student of American history, because he believes that Addington has failed to understand that the Founders designed the U.S. government specifically to insure that the executive would not have unlimited power. Fein suggests that the Founders, unlike Addington, understood the perils of concentrated power. They had seen in George III, among others, what tyranny meant.

What is the New Paradigm?

It’s a shorthand term that comes from a memo signed by Alberto Gonzales but believed to have been written in part by Addington, in which the authors articulated that the attacks of 9/11 required a legal response beyond the confines of ordinary criminal law and ordinary military law. Instead, they said, a “new paradigm” was called for, allowing the government to emphasize detection and prevention of crime, at the expense of more traditional notions of due process. Their aim was to stop terrorist attacks before they were perpetrated. To do so, they felt they needed to interrogate, detain, and try terrorist suspects in ways that would not be permissible under U.S. or international law. The New Paradigm has come to refer to all of the novel legal policies that the Bush Administration has forged in its approach to the global war on terrorism.

Following the September 11th attacks, the Bush Administration released memos asserting the President’s right to decide, among other things, how to wage war and treat prisoners. How much of this came from Addington?

Some lawyers in the Administration believe that, as one told me, “It’s all Addington.” While Addington, of course, could not have written every memo, his “fingerprints,” as Lawrence Wilkerson, the former assistant to Colin Powell, put it, were all over these policies.

Addington was merely the legal counsel to the Vice-President until last fall, so it is curious that he exercised so much influence. But, according to other lawyers who deal with national-security issues in the Administration, Addington exercised enormous influence in part because he was seen as Cheney’s representative, and Cheney was the epicenter of power on these matters.

Addington also had a forceful, aggressive, and, some say, bullying style that allowed him to dominate legal debates. In interviews, other lawyers told me how he dismissed their views, mocked their softness if they championed international law, and worked secretively and, one of them said, viciously, to outmaneuver critics.

Another reason Addington gained so much influence after 9/11 was that, unlike many other top Administration officials, he was not only a lawyer but also an expert on national-security law.

You argue that the September 11th attacks did not change Cheney and Addington’s expansive views of the power of the executive branch so much as allow them to implement their long-held views. What led you to this conclusion?

At least fifty sources were interviewed for this story. And those who knew Cheney and Addington during the Vietnam War and Watergate told me that, ever since then, both men have wanted to correct what they saw as a weakening of the Presidency. Cheney has participated in the writing of two reports reflecting this view, and he talked about it in a recent press conference. In many ways, 9/11 gave Addington and Cheney the chance to implement their views on the need for a stronger Presidency, since in times of war the President’s powers are greatly augmented.

Other Presidents have taken extraordinary legal measures during wartime—the suspension of habeas corpus under Lincoln, the internment of Japanese-Americans under F.D.R. Is there anything different about the Bush Administration’s assertion of executive power?

All Presidents, it is said, overreach during wartime, but, according to Arthur Schlesinger, Jr., whom I had the pleasure of interviewing for my article, the Bush White House has done this differently. While earlier Presidents have, as you say, suspended ordinary laws, he suggests that earlier Presidents did not assert that this was their inherent constitutional right. In contrast, Schlesinger says, the Bush White House has taken these infamous aberrations and woven them together into a doctrine of Presidential power.

Last week, the U.S. Army recovered the bodies of two American soldiers who had been tortured. How does the Administration’s position on torture affect its ability to respond to such brutality?

Torture and abuse are perennial problems in all wars, but one could argue that, because the Bush Administration has blurred the lines concerning what sort of treatment of captured enemies is permissible, they have forfeited some of the moral high ground that the country could ordinarily occupy on this issue. It’s harder to condemn the outrageous treatment of our soldiers now that we are accused of treating detainees deplorably.

David Addington doesn’t speak to reporters, and he refused your interview requests. After speaking to many people about Addington, what would you like to ask him now?

I’d like to ask him whether, in his view, there is anything that the President cannot legally do in the service of national security. Bruce Fein, the Republican legal activist, suggests that, in Addington’s view, the President could kill someone in a public park if he deemed the person to be an enemy combatant. I’d like to hear Addington’s thinking about why such an extreme view might be justified, and also why it is that, according to colleagues, he sees no political downside to these extreme views. For instance, he has repeatedly argued that there have been no political costs associated with Guantánamo Bay. Yet even President Bush has acknowledged that the Defense Department’s camps there have hurt the image of the U.S. abroad.

It would be interesting to hear why Addington doesn’t agree with the President on this.

Copyright © CondéNet 2006

[seekfrieddy]

Hamdan v. Rumsfeld: A (Tentative) Guide for the Perplexed

cato-at-liberty.org
posted by Mark Moller on 06.30.06

Hamdan v. Rumsfeld, the recent Supreme Court case concerning the use of special military commissions to try Guantanamo prisoners, is a bear to boil down, accurately, in a single blog post. It touches on a perfect storm of arcane questions: customary international law, treaty interpretation, the common law of war, the Uniform Code of Military Justice, and jurisdiction-stripping.

The Court’s basic argument, as I understand it, is this: Congress can set the rules governing military commissions in most cases, including this one. Those rules, spelled out in the U.S. Code of Military Justice and corresponding treaties, specify as follows:

• The commissions must conform as much as practical to the procedures that govern standing courts-martial (the standing tribunals in which U.S. serviceman can be tried) and ordinary civil criminal trials.
• The Geneva Convention sets additional, overlapping requirements that trial of prisoners must occur in “regularly constituted” courts.

Those requirements have been violated. While the commissions depart from the standard procedures of courts-martial, the president hasn’t made a sufficient showing that consistency with the procedures of ordinary courts-martial isn’t a “practical” option, as U.S. law (specifically, Article 36 of the U.S. Code of Military Justice) requires. Because the president hasn’t made that showing, the Gitmo commissions also aren’t “regularly constituted” courts — and therefore trying persons before the commissions violates Common Article 3 of the Geneva Convention.

Got that? Good, because there are some more wrinkles:

The Court also holds that Common Article 3 of the Geneva Convention is part of the “law of war” that governs military commissions under U.S. law. That means that Common Article 3 of the Geneva Convention is a restraint on the procedures that govern the commissions. Furthermore, the Court holds that Common Article 3 of the Geneva Conventions applies to the armed conflict with al Qaeda. That suggests that the Geneva Convention is a restraint on the way we treat prisoners who are in U.S. custody, since Common Article 3 requires that they be treated humanely.

Finally, the Court lays out a safe harbor for the administration. If the administration (1) adopts procedures and oversight mechanisms that apply to courts-martial — particularly, standards and procedures that insulate the “presiding officer” (judge-like officer who presides over trials in commissions) from control by political appointees selected by the SecDef, and (2) conform standards governing admission of evidence to the rules that govern courts-martial, the commissions might be upheld. Also, if the administration offers record evidence that the procedures of courts-martial are impractical, it might also secure judicial approval of the commissions. Even if it doesn’t do this, the military can still hold Guantanamo detainees indefinitely without trial. The administration can also convince Congress to approve the procedures it prefers.

Here’s some of what the Court didn’t decide:

1. Can Congress withdraw the Supreme Court’s authority to hear future challenges to the military commissions by persons who aren’t yet enmeshed in a prosecution before a commission? We don’t know. The Court holds only that Congress hasn’t withdrawn its jurisdiction over prosecutions already initiated.
2. Is the Detainee Treatment Act — which removes Supreme Court jurisdiction to hear appeals by Guantanamo detainees based on U.S. statutes or the Constitution, gives lower courts discretion to deny appeal of non-capital cases in which defendants face short prison sentences, and limits appeal to judgments contained in a “final decision” of a military commission — valid as applied to persons who haven’t yet been charged? No answer.
3. Does the president have inherent power to ignore Congress in cases of “controlling necessity” in, for example, the field of combat? The Court doesn’t clearly answer that question. Says the Court: “Whether Chief Justice Chase was correct in suggesting that the President may constitutionally convene military commissions ‘without the sanction of Congress’ in cases of ‘controlling necessity’ is a question this Court has not answered definitively, and need not answer today.” The Court specifies, in footnote 23, only that the President “may not disregard limitations that Congress has, in proper exercise of its own powers, placed on his powers.” The meaning of that all important qualification — “proper” — remains undetermined.
4. Can the president establish commissions that depart from ordinary procedure of courts-martial? Yes — if he shows that the ordinary procedures are impractical. The Court holds only that the president hasn’t made such a showing — not that he can’t ever make such a showing. The Court also doesn’t settle when such a showing is substantial enough to deserve deference.
5. Can civil courts hear claims raising violations of the Geneva Convention? This, too, remains unanswered. The majority, including Justice Kennedy, holds that only the Convention is enforceable under the Uniform Code of Military Justice as part of the “law or war” that governs military commissions. That ruling has no necessary application to civil courts. However, the opinion is quite suggestive. Both the majority and concurrence cite 18 U.S.C. § 2241, which Justice Kennedy stresses makes violation of Common Article 3 of the Geneva Convention a war crime punishable as a federal offense, enforceable in federal civil court. The majority holds, of course, that trying pesons under the president’s military commission order violates Common Article 3 of the Geneva Convention, suggesting that trial is a war crime within the meaning of 18 U.S.C. § 2241. Furthermore, the majority stresses that the Geneva Conventions “do extend liability for substantive war crimes to those who ‘orde[r]’ their commission” and “this Court has read the Fourth Hague Convention of 1907 to impose ‘command responsibility’ on military commanders for acts of their subordinates.” The Court’s emphasis on the liability that attaches to “orders” is significant, because trials in the military commissions are, of course, pursuant to a direct presidential order. Even so, its difficult to imagine a circumstances in which charges under Section 2241 might actually be prosecuted.

[dodsCooggipsehome]

The Court also holds ...

... the military can still hold Guantanamo detainees indefinitely without trial. The administration can also convince Congress to approve the procedures it prefers.

SCOTUS did NOT rule this, but stated that this particular question was not raised in this case and therefore has neither been heard nor decided.

[unfolaReemoma]

Did Bush commit war crimes?

Supreme Court's decision in Hamdan vs. Rumsfeld could expose officials to prosecution.

LA TIMES
Op / Ed
Rosa Brooks
June 30, 2006

THE SUPREME Court on Thursday dealt the Bush administration a stinging rebuke, declaring in Hamdan vs. Rumsfeld that military commissions for trying terrorist suspects violate both U.S. military law and the Geneva Convention.

But the real blockbuster in the Hamdan decision is the court's holding that Common Article 3 of the Geneva Convention applies to the conflict with Al Qaeda — a holding that makes high-ranking Bush administration officials potentially subject to prosecution under the federal War Crimes Act.

The provisions of the Geneva Convention were intended to protect noncombatants — including prisoners — in times of armed conflict. But as the administration has repeatedly noted, most of these protections apply only to conflicts between states. Because Al Qaeda is not a state, the administration argued that the Geneva Convention didn't apply to the war on terror. These assertions gave the administration's arguments about the legal framework for fighting terrorism a through-the-looking-glass quality. On the one hand, the administration argued that the struggle against terrorism was a war, subject only to the law of war, not U.S. criminal or constitutional law. On the other hand, the administration said the Geneva Convention didn't apply to the war with Al Qaeda, which put the war on terror in an anything-goes legal limbo.

This novel theory served as the administration's legal cover for a wide range of questionable tactics, ranging from the Guantanamo military tribunals to administration efforts to hold even U.S. citizens indefinitely without counsel, charge or trial.

Perhaps most troubling, it allowed the administration to claim that detained terrorism suspects could be subjected to interrogation techniques that constitute torture or cruel, inhuman and degrading treatment under international law, such as "waterboarding," placing prisoners in painful physical positions, sexual humiliation and extreme sleep deprivation.

Under Bush administration logic, these tactics were not illegal under U.S. law because U.S. law was trumped by the law of war, and they weren't illegal under the law of war either, because Geneva Convention prohibitions on torture and cruel treatment were not applicable to the conflict with Al Qaeda.

In 2005, Congress angered the administration by passing Sen. John McCain's amendment explicitly prohibiting the use of cruel, inhuman or degrading treatment of detainees. But Congress did not attach criminal penalties to violations of the amendment, and the administration has repeatedly indicated its intent to ignore it.

The Hamdan decision may change a few minds within the administration. Although the decision's practical effect on the military tribunals is unclear — the administration may be able to gain explicit congressional authorization for the tribunals, or it may be able to modify them to comply with the laws of war — the court's declaration that Common Article 3 applies to the war on terror is of enormous significance. Ultimately, it could pave the way for war crimes prosecutions of those responsible for abusing detainees.

Common Article 3 forbids "cruel treatment and torture [and] outrages upon personal dignity, in particular humiliating and degrading treatment." The provision's language is sweeping enough to prohibit many of the interrogation techniques approved by the Bush administration. That's why the administration had argued that Common Article 3 did not apply to the war on terror, even though legal experts have long concluded that it was intended to provide minimum rights guarantees for all conflicts not otherwise covered by the Geneva Convention.

But here's where the rubber really hits the road. Under federal criminal law, anyone who "commits a war crime … shall be fined … or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death." And a war crime is defined as "any conduct … which constitutes a violation of Common Article 3 of the international conventions signed at Geneva." In other words, with the Hamdan decision, U.S. officials found to be responsible for subjecting war on terror detainees to torture, cruel treatment or other "outrages upon personal dignity" could face prison or even the death penalty.

Don't expect that to happen anytime soon, of course. For prosecutions to occur, some federal prosecutor would have to issue an indictment. And in the Justice Department of Atty. Gen. Alberto Gonzales — who famously called the Geneva Convention "quaint" — a genuine investigation into administration violations of the War Crimes Act just ain't gonna happen.

But as Yale law professor Jack Balkin concludes, it's starting to look as if the Geneva Convention "is not so quaint after all."

Copyright 2006 Los Angeles Times

[EtellaObtaite]

Gitmo win likely cost Navy lawyer his career

'Fearless' defense of detainee a stinging loss for Bush

Raw Story / Seattle Post-Intelligencer
By PAUL SHUKOVSKY
P-I REPORTER
July 1, 2006


AP
Navy Lt. Cmdr. Charles Swift first represented
Hamdan two years ago in U.S. District Court in Seattle.


Lt. Cmdr. Charles Swift -- the Navy lawyer who beat the president of the United States in a pivotal Supreme Court battle over trying alleged terrorists -- figures he'll probably have to find a new job.

Of course, it's always risky to compare your boss to King George III.

Swift made the analogy to the court, saying President Bush had overstepped his authority when he bypassed Congress and set up illegal military tribunals to try Guantanamo detainees such as Swift's alleged al-Qaida client, Salim Ahmed Hamdan.

The justices agreed, ruling 5-3 Thursday in favor of dismantling the current tribunal system.

Despite his spectacular success, with the assistance of attorneys from the Seattle firm Perkins Coie, Swift thinks his military career is coming to an end. The 44-year-old Judge Advocate General officer, who was recently named one of the 100 most influential lawyers in the country by The National Law Journal, was passed over for promotion last year as the high-profile case was making headlines around the world.

"I may be one of the most influential lawyers in America," the Seattle University Law School graduate said, "but I won't be in the military much longer. That irony did strike me."

Swift's future in the Navy now rests with another promotion board that is expected to render its decision in the next couple of weeks. Under the military's system, officers need to be promoted at regularly scheduled intervals or their service careers are essentially over.

"The way it works, the die was cast some months ago," he said. "The decision has been made. I don't know what it is yet." But he thinks his chances are slim.

Asked if he believes he was passed over for promotion last year for political reasons, Swift would not speculate.

"I don't know," he said. "I'm not going to worry about it. I didn't volunteer for this. I got nominated for it. When I got it, I just decided to do the best I could."

Swift has worked under two officers as a member of the small team of lawyers defending "enemy combatants" being held at Guantanamo Bay. Both of them spoke highly of Swift Friday and said they gave him very high ratings on his annual review, called a fitness report.

"He's doing a fantastic job," said Swift's current boss at the Office of Military Commissions (tribunals), Marine Col. Dwight Sullivan.

Sullivan spoke of the crucial importance of the case decided Thursday by the Supreme Court. "It's a fundamental constitutional question about the powers of the president," Sullivan said. Asked about Swift's aggressive legal challenge of the commander in chief, Sullivan saluted Swift's "moral courage."

"He has been absolutely fearless is pursuing his client's interests. And also he has exhibited an extraordinary level of legal skill. His legal strategy has been brilliant.

"We all take an oath to protect and defend the Constitution of the United States and he has certainly done that, literally."

Swift spoke Friday about his "immense pride" in the military justice system. "I don't feel that because you join the military you should lose rights. If there is anyone who deserves the protection of those rights, it's the people who are willing to lay down their lives for it."

So the question is will Swift lay down his career because of his vigorous defense of a Yemeni tribesman who was Osama bin Laden's driver in Afghanistan.

Swift's first supervisor at the Office of Commissions was Col. Will Gunn, who said Friday that he gave Swift two annual fitness reports and "I gave him very high ratings overall."

Asked whether he thought politics might have played a role in Swift being bypassed for promotion, Gunn focused on Swift's atypical career as a military lawyer. "Charlie has spent a lot of time as a litigator, a trial advocate. That's really unusual in the JAG. You find that people in the more senior ranks have moved around and proved themselves in a variety of settings."

Most of Swift's career has been spent in the courtroom.

"While Charlie is a brilliant guy, a tenacious litigator, he does not have all the blocks checked like some other folks have," Gunn said. He called it a "breadth-of-experience" issue.

Swift clearly believes that his vigorous defense of Hamdan was, in a very real way, a vigorous defense of military justice and the Constitution.

"If they are calling the commissions (tribunals) military justice, it's got to live up to what military justice is. It means something. It's about the law, not what the leaders want. The greatest thing about the JAG Corps is ... I had the opportunity to work every day in a system I believe in."

Swift figures he'll hear around the second week of the month whether he's been passed over for promotion again. If so, he says, it will be time to dust off the resume.

He doesn't know what might be next, but when asked if he might move back to the Puget Sound area, he said: "I lived in Seattle for 6 1/2 years. I love Seattle."

He proceeded to reminisce fondly about sitting in the Kingdome's outfield bleachers watching the Mariners play. "And my wife is an airplane pilot. She could live anywhere."

© 1998-2006 Seattle Post-Intelligencer

[joulseenjoync]

The Court Enters the War, Loudly

NY TIMES
By ADAM LIPTAK
Week in Review
July 2, 2006

JOHN C. YOO, a principal architect of the Bush administration's legal response to the terrorist threat, sounded perplexed and a little bitter on Thursday afternoon. A few hours earlier, the Supreme Court had methodically dismantled the legal framework that he and a few other administration lawyers had built after the Sept. 11, 2001, attacks.

"What the court is doing is attempting to suppress creative thinking," said Professor Yoo, who now teaches law at the University of California, Berkeley.
"The court has just declared that it's going to be very intrusive in the war on terror. They're saying, 'We're going to treat this more like the way we supervise the criminal justice system.' "

While in the Justice Department's Office of Legal Counsel from 2001 to 2003, Mr. Yoo helped write a series of memorandums setting out a bold and novel legal strategy to find, hold, question and punish the nation's enemies. The memorandums said the Geneva Conventions do not apply to people the administration designates as enemy combatants. They contemplated the use of highly coercive interrogation techniques. They justified secret surveillance.

The court's decision in Hamdan v. Rumsfeld, Professor Yoo said, may signal the collapse of the entire enterprise. "It could affect detention conditions, interrogation methods, the use of force," he said. "It could affect every aspect of the war on terror."

He was not overstating his case. True, the decision itself — holding that the government could not try detainees held at Guantánamo Bay, Cuba, for war crimes in a particular way — was narrow, given that it directly affected only 10 men and did not address the administration's broader contention that it can hold those men and hundreds of others without charges forever. And Congress may yet put some or all of the president's programs on firmer legal footing.

But the effect of the decision, constitutional lawyers across the political spectrum agreed, could devastate the administration's main legal justifications for its campaign against the terrorist threat.

"The mood music of this opinion so lacks the traditional deference to the president," said John O. McGinnis, who served in the Justice Department from 1987 to 1991 and now teaches law at Northwestern, "that it would seem to have implications for his other programs."

The administration had built its case in part on a vote by Congress, taken a week after Sept. 11, that authorized the president to "use all necessary and appropriate force" against those who participated in and supported the attacks. The administration has relied on that authorization as legal support for several of its programs.

In 2004, the Supreme Court endorsed a part of this argument, but Justice John Paul Stevens, writing for the majority in Hamdan, was having none of it.
There is, he said "nothing in the text or legislative history" of the authorization "even hinting that Congress intended to expand or alter" existing laws concerning military trials.

The opinion, Professor Yoo said, seemed to require Congress to specify a laundry list of powers before the president can act.

"I worked on the authorization," he added. "We wrote it as broadly as possible. In past wars, the court used to let the president and Congress figure out how to wage the war. That's very different from what's happening today. The court said, 'If you want to do anything, you have to be very specific and precise about it.' "

The logic of the ruling and its requirement that Congress directly authorize presidential actions even in wartime has broad implications. For one thing, said Laurence H. Tribe, a law professor at Harvard, it seems to destroy the administration's argument that Congress blessed the National Security Agency's domestic surveillance program when it voted for the authorization.

"That argument is blown out of the water and is obliterated," Professor Tribe said.

Justice Stevens also took aim at the administration's chief constitutional argument, the one that critics call "Article II on steroids."

Because Article II of the Constitution, among other things, anoints the president as commander in chief, Professor Yoo and other administration lawyers have argued the president can ignore or override laws that seem to limit his authority to conduct war. In the current struggle against terrorism, they argue, the entire world is the battlefield.

Perhaps not any more. Steven G. Calabresi, a law professor at Northwestern and a founder of the Federalist Society, the conservative legal group, said this second argument is also in trouble.

"The court is certainly not embracing the broader Article II power," he said.
Indeed, a footnote in the majority opinion, one sure to be read closely, seems tailored to address these other controversies by rejecting the argument that the president is free to ignore Congressional limitations on his power.

"Conceivably the court had in mind controversies like the N.S.A. terrorist surveillance program" in crafting the footnote, said Curtis A. Bradley, a former Bush administration lawyer who now teaches law at Duke.

There are supporters of the N.S.A. program who say that the Hamdan decision does not affect it. They note that a 2002 appeals court decision said that Congress "could not encroach on the president's constitutional power" to conduct warrantless surveillance to obtain foreign intelligence.

The wholesale rejection of the administration's positions in Hamdan may have its roots in part in judicial hostility toward the memorandums Professor Yoo helped prepare several years ago. The justices in the majority, said Professor McGinnis, "have been so skeptical of a variety of legal interpretations coming out of the executive branch, like the so-called torture memos, that they are not giving the president any deference."

But some justices seemed to leave a door open, suggesting that the decision is not so much a judicial attack on executive power as it is an insistence that Congress, rather than a small group of administration lawyers, must play a leading role in formulating the response to terror.

"Where, as here, no emergency prevents consultation with Congress," Justice Stephen G. Breyer wrote in a brief concurrence that three other justices joined, "judicial insistence upon that consultation does not weaken our nation's ability to deal with danger. To the contrary, that insistence strengthens the nation's ability to determine — through democratic means — how best to do so."

But Professor Yoo was not inclined to accept the decision as a triumph of the democratic process. Instead, he saw it as a judicial usurpation of the president's power to protect the nation. "The court is saying we're going to be a player now," he observed ruefully.

Copyright 2006 The New York Times Company

[EsAllCams]

The Degeneracy of American Conservatism

ANDREW SULLIVAN
02 Jul 2006 01:50 pm

This piece of hysterical support for an unlimited executive power in a permanent war, and contempt for the critical role of the judiciary in a constitutional republic reveals the depth of the rot in the American conservative mind and soul. From conservatism being a political tradition rooted in freedom from government control, and in the checks and balances of a constitutional order, conservatism has now morphed in America into a defense of unfettered executive power, in which all judicial checks are regarded as a form of tyranny.

Yes: an executive empowered to be judge, jury, torturer and executioner is no problem. A Court attempting to uphold the constitution, in contrast, is a sign of outrageous tyranny.

We truly have passed through the Looking Glass.

[HaremShaih]

15 Judiciary Democrats seek hearings on Guantanamo

RAW STORY
July 2, 2006

Fifteen Democratic members of the House Judiciary Committee have asked the Chairman of the House Judiciary Committee to conduct hearings after last week's Supreme Court decision which overturned the Bush Administration's Military Tribunal requirements, RAW STORY has found.

Excerpts from a press release announcing the news:

Ranking Member John Conyers stated: "Yesterday's decision was a landmark court ruling that made abundantly clear that the President does not have unlimited powers, and needs to work with the other branches of government. I am hopeful that Congress can work together on a bipartisan basis to resolve the issues highlighted by the Supreme Court yesterday. Given the sensitive legal and constitutional issues raised, clearly the House Judiciary Committee needs to be engaged in this process."

Rep. Adam Schiff added, "the Supreme Court's decision in Hamdan v. Rumsfeld should act as a wakeup call to Congress to fulfill its responsibility of setting up a legal system by which enemy combatants can be detained. It has been over three years since I first introduced legislation addressing the detention of enemy combatants, and despite repeated calls for hearings, Congress has failed to take action. I am hopeful now that the Supreme Court has weighed in, the House Judiciary Committee Chairman Sensenbrenner will hold hearings and a markup of this vital legislation."


The text of the letter [pdf] follows:Dear Chairman Sensenbrenner:

The United States Supreme Court has ruled 5-3 in Hamdan v. Rumsfeld that the President did not have the authority to set up the "military commissions" in Guantanamo and that they are invalid. The Court found that the military commissions were not expressly authorized by any congressional act and that "the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction."

For several years now, we have requested hearings on Guantanamo and legislation that would establish standards of due process for detainees. The Supreme Court has now called on Congress to act in this area.

In the last several years, former Bush Administration Justice Department officials have also suggested the need to reevaluate the Administration's system of detaining individuals without oversight. Viet Dinh, former Assistant Attorney General for the Office of Legal Policy, called "unsustainable" the government's insistence on detentions without meaningful oversight or due process. Michael Chertoff, former head of the Justice Department's Criminal Division, wrote a few years ago that policymakers "may need to think more systematically and universally about the issue of combatants" and "debate a long-term and sustainable architecture for the process of determining when, why, and for how long someone may be detained...and what judicial review should be available."

The Supreme Court decision in Hamdan specifically found that the existing military commissions in Guantanamo do not meet the requirements of the Uniform Code of Military Justice ("UCMJ"). Legislation establishing standards of due process for the tribunals in Guantanamo based on the UCMJ was referred to the Judiciary Committee over a year ago and is still pending action.

Justice Breyer, in a concurring opinion, pointed out that "Congress has not issued the Executive a 'blank check'" and that "nothing prevents the President from returning to Congress to seek the authority he believes necessary." We believe that we must heed this invitation for congressional action and act to establish clear standards and procedures to deal with terrorist detainees. Accordingly, we respectfully request that you schedule a hearing on these issues and legislative proposals as soon as possible.

Respectfully,

Reps. John Conyers, Jr., Adam Schiff, Zoe Lofgren, Debbie Wasserman Schultz, Bill Delahunt, Sheila Jackson Lee, Bobby Scott, Martin Meehan, Jerrold Nadler, Chris Van Hollen, Melvin Watt, Howard Berman, Maxine Waters, Robert Wexler, Rick Boucher

[Helloheshess]

A Check Against Fear
"There are not many countries where a noncitizen with a fourth-grade education can sue the president," says Neal Katyal, the Georgetown Law professor who argued Hamdan's case before the Supreme Court. "That is our great gift to the world. We're strong enough to say our system can handle it." NY TIMES Magazine
By JONATHAN MAHLER

July 9, 2006

The afternoon before the Supreme Court handed down its instantly historic ruling in Hamdan v. Rumsfeld, Lt. Cmdr. Charles Swift, the Navy defense lawyer appointed to represent the man who has admitted to being Osama bin Laden's driver, Salim Hamdan, told me he was reading a minority opinion written 60 years earlier, in the wake of World War II, by one of the court's lesser-known justices, Wiley B. Rutledge* (Correction Appended). The case involved Tomoyuki Yamashita, a Japanese general who'd been convicted of war crimes and sentenced to death by a U.S. military tribunal, a verdict upheld by the court, 6-2, despite some glaring procedural deficiencies: among other things, the admission of hearsay evidence including propaganda films and unnamed witnesses.

When Swift and I spoke, Supreme Court watchers had already deduced that Justice John Paul Stevens would be writing for the majority in Hamdan. Back in 1947, the 27-year-old Stevens was Rutledge's clerk, so Swift was consulting Rutledge's dissent in Yamashita for clues.

Rutledge's opinion included these stirring words: "In this stage of war's aftermath it is too early for Lincoln's great spirit, best lighted in the Second Inaugural" — the spirit of magnanimity — "to have wide hold for the treatment of foes. It is not too early, it is never too early, for the nation steadfastly to follow its great constitutional traditions, none older or more universally protective against unbridled power than due process of law in the trial and punishment of men, that is, of all men, whether citizens, aliens, alien enemies or enemy belligerents."

Swift told me, "I think tomorrow's going to be a good day."

And of course it was. With the assent of four of his colleagues, Stevens ruled that the military tribunals created by presidential order in November 2001 to try enemies captured in the war on terror violated the Geneva Conventions and the Uniform Code of Military Justice and were therefore illegal. Stevens, it would seem, had absorbed his mentor's distaste for unbridled power. "He was finally able to vindicate those values that Rutledge championed," says Allison Danner, who clerked for Justice Stevens in the late 1990's.

So much of the conversation concerning the war on terror has focused on fear — for some, the fear of losing our freedoms, for all, the fear of another attack. It's easy to overlook the counternarrative of hope, whether it's Iraqi citizens braving violence to vote in free democratic elections, the declining confidence in bin Laden in a number of Muslim countries (according to a recent Pew Research Center poll) or our Supreme Court reminding us of the resilience of the principles upon which this country was built. "There are not many countries where a noncitizen with a fourth-grade education can sue the president," says Neal Katyal, the Georgetown Law professor who argued Hamdan's case before the Supreme Court. "That is our great gift to the world. We're strong enough to say our system can handle it."

Throughout our history, war has led to the abrogation of rights, from the Alien and Sedition Acts through the detention and internment of Japanese-Americans in World War II to the F.B.I.'s undercover infiltration of antiwar groups during Vietnam. More often than not, when asked to rule on the legality of these extraordinary measures, the Supreme Court has given the commander in chief a wide berth. This is understandable: "Judges, like other citizens, do not wish to hinder a nation's 'war effort,' " Justice William Rehnquist once wrote. And yet, when the court sets aside civil liberties and defers to the president, it acts out of fear; when the court checks the president and reaffirms those liberties, it acts out of strength — and, equally, hope.

President Bush has said that the war on terror presents unprecedented challenges and therefore demands a novel approach, the so-called new paradigm. It is true that we are fighting a new kind of enemy, one who is transnational, can wreak havoc on an epic scale and, in the case of suicide bombers, cannot be deterred by the threat of conviction in a court of law. But if the danger posed by this enemy is of a different character than we have encountered in the past, so, too, is the danger posed by our response to him. This is, after all, a war with no foreseeable end and a limitless battlefield. Left unchecked, the president could extend the reach of his wartime powers anywhere, ad infinitum.

Do we need to narrow the scope of certain liberties to defeat radical Islam?

The majority opinion in Hamdan does not preclude this possibility, but it does prevent the president from acting unilaterally, while inviting — compelling, really — Congress to assume its own share of constitutional responsibility for the war on terror. Will Congress prove a more vigilant steward of our civil liberties? We cannot say. In the future, the balance of hope and fear will depend on many things, most notably whether we are attacked again. But we are at least assured of an admittedly overdue debate about the conduct of the war. Before Hamdan, that debate, such as it was, consisted of the executive branch telling us — or not telling us — how it was prosecuting the war and of the denunciations issued by the executive branch's critics. We were told that after 9/11, everything had changed — or that nothing had changed. Now that our fear will be tempered by hope, the real conversation can begin.


*Correction: July 9, 2006An article on Page 13 of The Times Magazine today about the recent Supreme Court decision that blocked the Bush administration's plan to try detainees at Guantánamo Bay by military commission misattributes a passage from a Supreme Court opinion 60 years ago that dealt with many of the same issues in the case of a Japanese war criminal. The dissenting opinion, about "the immutable rights of the individual," was written by Justice Frank Murphy, not another of the dissenters, Justice Wiley B. Rutledge.Jonathan Mahler, a contributing writer, has written previously for the magazine about Guantánamo Bay. He is at work on a book about Salim Hamdan and his defense lawyers.


Copyright 2006 The New York Times Company

[Sleflanna]

Where Terrorism Finds Support in the Muslim World

That May Depend on How You Define It - and Who Are the Targets

Pew Global Attitudes Project
by Richard Wike, Pew Global Attitudes Project and
Nilanthi Samaranayake, Pew Research Center for the People & the Press
May 23, 2006

What produces terrorists and what conditions allow them to multiply in number and power in the Muslim world? While many studies point to the important role public opinion plays in creating an environment in which terrorist groups can flourish, relatively few works have explored survey data to measure support for terrorism among general publics. Findings from the 2005 Pew Global Attitudes survey on attitudes toward suicide bombing and civilian attacks and other measures of support for terrorism offer some revealing perspectives on this question.i

Most notably, the survey finds that terrorism is not a monolithic concept--support for terrorist activity depends importantly on its type and on the location in which it occurs. For example, Moroccans overwhelmingly disapprove of suicide bombings against civilians, but, among respondents in the six predominantly Muslim countries surveyed, they are the most likely to see it as a justifiable tactic against Americans and other westerners in Iraq. Opinions about the United States, its attitudes in dealing with the larger world and the Iraq war are also powerful factors in shaping support for terrorism, as are perceptions that Islam is under threat. With the exception of gender, demographic differences, including income, explain little if anything about attitudes toward terrorism in the Muslim world, but country-specific differences are significant, suggesting the importance of local social, political and religious conditions.

These findings are generally though not entirely consistent with other studies of the origins and growth of Islamic terrorism. Much of the relevant literature, however, differs in its focus, concentrating instead on the motivations of terrorist organizations and their members. For example, groups may turn to suicide bombing when other strategies fail (Martha Crenshaw, 1998) or when they find themselves in competition for public support with other militant groups (Mia Bloom, 2005). Robert Pape (2003) finds that terrorism can be a "rational" strategy, pursued by groups, including secular groups, seeking territorial concessions from liberal democracies (2003). Several authors examine the link between political authoritarianism and terror. Alberto Abadie (2004) finds countries in transition from authoritarianism to democracy at a heightened risk for terrorist activities, while Gregory Gause (2005) argues that authoritarian regimes may be best equipped to stifle terrorism - he offers China as an example. Still others see support for terrorism driven in part by opposition to U.S. foreign policy. For instance, Scott Atran (2004) finds "no evidence that most people who support suicide actions hate Americans' internal cultural freedoms, but rather every indication that they oppose U.S. foreign policies, particularly regarding the Middle East."

Relatively few studies have addressed the public attitudes that allow terrorism to take root and grow in certain societies; those that have rely on earlier data than is provided by the 2005 Pew study. In their analysis of Lebanese Muslim attitudes, Simon Haddad and Hilal Khashan (2002) find that younger respondents and those who endorse political Islam are more likely than others to approve of the September 11 attacks. However, they find that income and education are unrelated to such opinions. Examining polling data from the Palestinian Center for Policy and Survey Research, Alan Krueger and Jitka Maleckova (2002) also conclude that, contrary to much conventional wisdom, poverty and low education are not key drivers of support for terrorism.

Similarly, in a recent study, Christine Fair and Bryan Shepherd (2006) analyze 2002 Pew Global Attitudes data and find that women, young people, computer users, those who believe Islam is under threat, and those who want religious leaders to play a larger role in politics are more likely to support suicide bombing and other attacks against civilians. Fair and Shepherd find that financial status is also a significant determinant -- that the very poor are less, not more, likely to support such attacks.
What then do more recent data show?

Declining Support for Terrorism



Overall, the 2005 Pew Global Attitudes survey finds that support for terrorism has generally declined since 2002 in the six predominantly Muslim countries included in the study - Indonesia, Jordan, Lebanon, Morocco, Pakistan, and Turkey - although there are some variations across countries and survey items.

We will focus on results for three terrorism-related measures: attitudes about suicide bombing and other violence against civilians, views on suicide bombing carried out against Americans and other Westerners in Iraq, and opinions about Osama bin Laden. The first two measures were only asked of Muslim respondents. All respondents were asked their opinion of bin Laden; however, we will restrict our analysis to Muslim respondents.

The most basic measure of support for terrorism asked respondents the following question: "Some people think that suicide bombing and other forms of violence against civilian targets are justified in order to defend Islam from its enemies. Other people believe that, no matter what the reason, this kind of violence is never justified. Do you personally feel that this kind of violence is often justified to defend Islam, sometimes justified, rarely justified, or never justified?"



As Table 1 illustrates, the share of the public that believes suicide bombing and other violence is justifiable varies considerably across countries, with Jordanian Muslims significantly more likely than others to support terrorist acts. Lebanon and Pakistan form a middle tier on this question, followed by Indonesia, Turkey, and Morocco, where solid majorities say these forms of violence are never justified. In five of the six countries, support for such attacks has dropped since the last time the question was asked, although the decline in Turkey is insignificant. The lone exception is Jordan, where support has actually increased 14 points since 2002.

The most dramatic drop in support for terrorism is seen in Morocco, a country that experienced a devastating terrorist attack in May 2003. Fully 79% of Moroccans surveyed in 2005 said that support for suicide bombing and violence against civilians was never justified--more than double the percentage (38%) who had expressed this view a year earlier.



A second question asked respondents specifically about suicide bombing in Iraq: "What about suicide bombing carried out against Americans and other Westerners in Iraq? Do you personally believe that this is justifiable or not justifiable?"

Interestingly, despite the overall decline in support for terrorist acts among its citizens, Morocco is the only country in which a majority says attacks on Americans and other westerners in Iraq are justified. Roughly half of Jordanian and Lebanese Muslims support such acts, while fewer than 30% of Muslims in Pakistan, Indonesia and Turkey agree. In all four countries where trends exist, support for suicide attacks in Iraq has declined, including a large, 21-point drop in Jordan.

Finally, respondents were asked how much confidence they have in Osama bin Laden to do the right thing in world affairs. The results show support for bin Laden has declined in four of the six countries. Jordan and Pakistan are the exceptions, with the percentage of Muslims who have a lot or some confidence in bin Laden rising five points among Jordanians and six points among Pakistanis.

Independence of Terrorism Measures

It is clear that across all three measures, support for terrorism has declined generally. However, it is also clear that levels of support vary across questions, suggesting that each measures a different facet of how people view terrorism.

This can be illustrated by examining the relationship between views about suicide bombing generally and suicide bombing specifically in Iraq. As Table 4 demonstrates, in some predominately Muslim countries a significant number of people who believe that suicide bombing and other attacks against civilians are at least sometimes justifiable still do not support suicide bombing against Westerners in Iraq. For example, in Turkey among respondents who say suicide bombing is rarely, sometimes, or often justified, a 49% plurality says that suicide bombing in Iraq is not justifiable. By contrast, in Morocco 81% and in Jordan 68% of those who say targeting civilians is at least sometimes justified also find it justifiable in Iraq.



Similarly, those who believe that suicide bombing and other attacks against civilians are at least sometimes justifiable do not necessarily have confidence in Osama bin Laden. Again, results vary significantly by country, with 71% of Jordanian Muslims who believe violence against civilians can be justified also having confidence in bin Laden, compared with only 5% of Turks.

Finally, the relationship between views about suicide bombing in Iraq and views of bin Laden also differ significantly among the six countries. For instance, 82% of Jordanian Muslims who think suicide bombing in Iraq against Westerners is justifiable also have a lot or some confidence in bin Laden. However, only 6% of Lebanese in the same category also have confidence in bin Laden.

Correlates of Support for Terrorism

As noted above, differences in opinions about terrorism have been linked not only to demographic variables, notably age and gender, but also to views about Islam, democracy, and the United States. Four sets of variables are used to explore whether these patterns are significant in the 2005 survey data.

• Demographic variables - these include gender, age, education, and income, as well as whether a respondent has a child under age 18 living in the household and whether the respondent regularly uses a computer. Since measures for education and income differ across countries, for the purposes of analysis respondents are characterized as low or high education, and as low, middle, or high income.
• Views about Islam - Both the academic literature and the popular press have emphasized links between terrorism and an extremist brand of Islam. Responses to three questions are used to explore any potential relationships between opinions on religion and terrorism. The first asks respondents whether their primary identity is as a Muslim or as a citizen of their country (Jordanian, Moroccan, etc.). The second asks how important it is that Islam plays a more influential role in the world than it does now. The third asks whether the respondent thinks there are any serious threats to Islam today.
• Opinions about democracy - Two questions test these attitudes among respondents. The first asks whether democracy is a Western way of doing things that will not work in the respondent's country or if democracy is not just for the West and would work in their country. The second asks respondents if they are more optimistic or more pessimistic these days that the Middle East will become more democratic.
• Attitudes toward the United States - In addition to a straightforward favorability question about the U.S., these measures include questions about: the extent to which the U.S. takes into account the interests of countries such as the respondent's country when making international policy decisions; how worried, if at all, respondents are that the American military will become a threat to their country; whether the war in Iraq has made the world safer or more dangerous; and whether the U.S. government favors or opposes democracy in the respondent's country.ii

Comparison of levels of support for the three measures of terrorism against these four sets of variables reveals a number of associations. As seen in Table 6, across all three measures, men are generally more supportive of terrorism than are women. Meanwhile, individuals with children are less supportive of suicide bombing generally, but more supportive of bin Laden.
Support for terrorism is also more common among persons who identify primarily as Muslim, those who believe it is important for Islam to play an influential role on the world stage, and those who believe Islam faces serious threats.

Whether or not an individual thinks democracy is solely a Western way appears to have only modest effects on support for terrorism (it should be noted that relatively few Muslims, ranging from 12% in Morocco to 38% in Turkey, believe democracy is solely a Western form of government). On the other hand, across all three measures, those who are pessimistic about the prospects for Middle East democracy have more favorable attitudes toward terrorism.

Views about the U.S. appear strongly associated with attitudes toward terrorism, with support for terrorism higher among people who have an unfavorable opinion of the U.S., those who believe American foreign policy does not consider the interests of countries like theirs, those who are concerned that the U.S. may pose a military threat to their country, and those who believe the U.S. opposes democracy in their country.






Multivariate Analysis

Still, the question remains whether many of these variables have independent strength in explaining attitudes toward terrorism or whether they are primarily proxies for other significant variables with which they themselves are correlated. To determine whether these associations remain significant once other factors are controlled for, we conducted two types of regressionsiii including the variables described above as along with dummy variables to assess country specific effects.

As illustrated in Table 7, when other factors are controlled for, most demographic variables no longer show significant effects on opinions regarding suicide bombing and civilian attacks. However, gender remains significant in views about suicide bombing against Westerners in Iraq or confidence in bin Laden, with women less likely than men to support such bombing or the Al Qaeda leader. Income is also a significant determinant of support for bin Laden, with wealthier individuals holding a more negative view of the al Qaeda leader.

Two of the measured attitudes toward Islam also remain significant. The belief that it is important for Islam to play an influential role in the world is positively related to support for suicide bombing in Iraq and confidence in bin Laden. The perception that there are serious threats to Islam is positively associated with support for suicide bombing and other attacks against civilians, as well as suicide bombing against Westerners in Iraq. However, primarily identifying as a Muslim is not significantly related to any of the three dependent variables.

Variables measuring attitudes toward democracy show limited effects. The only instance in which either of the two democracy measures is significant is that people who believe democracy is not just a western way and can work in their country are less likely to support terrorist attacks against civilians.
By contrast, some attitudes toward the U.S. are strongly associated with views on terrorism. Support for terrorism is positively correlated with negative views of the U.S., a perception that the U.S. does not favor democracy in a respondent's country, and a belief that the Iraq war has made the world more dangerous.

Finally, nearly all of the country indicators are significant, indicating that country specific factors have a great deal of influence on attitudes toward terrorism.iV

The results show that the variables for Jordan and Lebanon are positively related to support for attacks against civilians, while the other three countries are negatively related to this measure. In the second model, with support for suicide bombing in Iraq as the dependent variable, variables for three countries -- Morocco, Lebanon, and Jordan -- are positively associated with approval of suicide attacks in Iraq. Meanwhile, the Turkey variable is negatively associated with support for suicide terrorism in Iraq. Finally, in the third model Morocco is the excluded category, and Pakistanis, Jordanians, and Indonesians are found to be more supportive of bin Laden, while Lebanese and Turkish Muslims are less likely to have confidence in bin Laden.





Conclusions

The findings suggest several general conclusions about public opinion regarding terrorism in these six predominantly Muslim countries. First, the 2005 poll finds support for terrorism on the decline, although there are a few exceptions to this pattern, and support remains rather high in some countries, notably Jordan. Previous research has shown that support tends to decline among publics after they have experienced attacks on their own soil, and future research will determine whether such a drop has occurred in Jordan following the November 2005 bombings in Amman.

Second, terrorism is not a monolithic concept, and different facets of terrorism have different patterns of public support. Many individuals who say suicide bombing in defense of Islam may be justifiable do not support it in Iraq, and vice versa. For example, while Moroccans are the least supportive of suicide bombing when it is described in general terms, they are the most likely to approve of suicide bombing specifically in Iraq.

Third, demographic characteristics appear to have relatively small effects on attitudes towards terrorism, with the exception of gender. Contrary to Fair and Shepherd, we find that women are generally less likely to approve of terrorist acts and are less likely to hold favorable views of Osama bin Laden.
Fourth, views about Islam are linked, to some extent, to views about terrorism. In particular, and consistent with Fair and Shepherd, we find the perception that Islam is under threat is positively correlated with support for terrorism.

Next, we find that opinions of the United States and of American foreign policy are important determinants of attitudes towards terrorism. The perception that the U.S. acts unilaterally in international affairs, concerns about the American military becoming a threat, negative views of the Iraq war, the belief that the U.S. opposes democracy in the region, and a generally unfavorable view of America all drive pro-terrorism sentiments.

Finally, the multivariate analysis finds significant country-specific effects, suggesting that conditions giving rise to terror are greatly influenced by local political, social, and religious factors. Future studies should seek to shed more light on these country specific influences, as well as the factors that shape public opinion on terrorism across nations.

A longer version of the paper was presented at the annual conference of the American Association for Public Opinion Research, Montreal, Canada, May 18-21, 2006

Appendix

Field dates for the survey, as well as the number of Muslims in each country sample are shown below.
Indonesia April 30-May 16, 200N = 970 Muslims
Jordan May 3-24, 2005N = 967 Muslims
Lebanon May 3-24, 2005N = 563 Muslims
Morocco June 6-16, 2005N = 1000 General public (religion not asked)Pakistan May 2-24, 2005 N=1203 Muslims
TurkeyApril 27-May 14, 2005N=965 Muslims

Full wording of questions Works Cited

Abadie, Alberto. 2004. "Poverty, Political Freedom, and the Roots of Terrorism." Kennedy School of Government Faculty Research Working Paper Series.

Atran, Scott. 2004. "Mishandling Suicide Terrorism." The Washington Quarterly 27: 67-90.

Bloom, Mia. 2005. Dying to Kill: the Allure of Suicide Terror. New York: Columbia University Press.

Crenshaw, Martha. 1998. "The Logic of Terrorism: Terrorist Behavior as a Product of Strategic Choice." In Walter Reich (ed.), Origins of Terrorism: Psychologies, Ideologies, Theologies, States of Mind. Washington, DC: Woodrow Wilson Center Press.

Fair, C. Christine and Bryan Shepherd. 2006. "Who Supports Terrorism? Evidence from Fourteen Muslim Countries." Studies in Conflict & Terrorism 29: 51-74.

Gause, F. Gregory III. 2005. "Can Democracy Stop Terrorism?" Foreign Affairs 84: 62-76.

Haddad, Simon and Hilal Khashan. 2002. "Islam and Terrorism: Lebanese Muslim Views on September 11." Journal of Conflict Resolution 46: 812-828.

Krueger, Alan B. and Jitka Maleckova. 2002. "The Economics and the Education of Suicide Bombers: Does Poverty Cause Terrorism?" The New Republic June 24.

Pape, Robert A. 2003. "The Strategic Logic of Suicide Terrorism." American Political Science Review 97: 343-361. Notes

i See the 2005 Pew Global Attitudes Survey for more information, including sample sizes and exact field dates. The analyses in this report are based on Muslim respondents only, except for Morocco, where a religious preference question was not asked. However, given that Morocco's population is 99% Muslim, it is likely that nearly all of the Moroccan sample is Muslim.

ii The question was not asked in Turkey.

iii Standard OLS regression was employed for the questions regarding suicide bombing and other attacks against civilians and confidence in bin Laden and logistic regression for the question concerning whether suicide bombing against Americans and other Westerners in Iraq is justified.

iv To test the independent importance of the country variables, in each model the country closest to the median position on the attitude in question was excluded. As shown in Table 7, in the first and second models, Pakistan is the excluded country, and the other country dummy variables should be interpreted as in comparison to Pakistan.

v This was a split form question asked of approximately half the sample.

Copyright © 2006 Pew Research Center

[Maypeevophy]

Leaked emails claim Guantanamo trials rigged

By North America correspondent Leigh Sales
Last Update: Monday, August 1, 2005. 8:16am (AEST)

http://www.abc.net.au/news/newsitems...8/s1426797.htm

Leaked emails from two former prosecutors claim the military commissions set up to try detainees at Guantanamo Bay are rigged, fraudulent, and thin on evidence against the accused.

Two emails, which have been obtained by the ABC, were sent to supervisors in the Office of Military Commissions in March of last year - three months before Australian detainee David Hicks was charged and five months before his trial began.

The first email is from prosecutor Major Robert Preston to his supervisor.

Maj Preston writes that the process is perpetrating a fraud on the American people, and that the cases being pursued are marginal.

"I consider the insistence on pressing ahead with cases that would be marginal even if properly prepared to be a severe threat to the reputation of the military justice system and even a fraud on the American people," Maj Preston wrote.

"Surely they don't expect that this fairly half-arsed effort is all that we have been able to put together after all this time."

Maj Preston says he cannot continue to work on a process he considers morally, ethically and professionally intolerable.

"I lie awake worrying about this every night," he wrote.

"I find it almost impossible to focus on my part of mission.

"After all, writing a motion saying that the process will be full and fair when you don't really believe it is kind of hard, particularly when you want to call yourself an officer and lawyer."

Maj Preston was transferred out of the Office of Military Commissions less than a month later.

Rigged?

The second email is written by another prosecutor, Captain John Carr, who also ended up leaving the department.

Capt Carr says the commissions appear to be rigged.

"When I volunteered to assist with this process and was assigned to this office, I expected there would at least be a minimal effort to establish a fair process and diligently prepare cases against significant accused," he wrote.

"Instead, I find a half-hearted and disorganised effort by a skeleton group of relatively inexperienced attorneys to prosecute fairly low-level accused in a process that appears to be rigged."

Capt Carr says that the prosecutors have been told by the chief prosecutor that the panel sitting in judgment on the cases would be handpicked to ensure convictions.

"You have repeatedly said to the office that the military panel will be handpicked and will not acquit these detainees and that we only needed to worry about building a record for the review panel," he said.

Significant find

David Hicks' defence lawyer, Major Michael Mori, says the documents are "highly significant".

"For the first time, we're seeing that concerns about the fairness of the military commissions extend to the heart of the process," Maj Mori said.

David Hicks's father, Terry, says the latest revelations confirm what he has suspected all along.

"These commissions weren't set up to release people," he said.

"These commissions were set up to make sure they were prosecuted and get the time that they give them, and the other thing we've said all along, that we believe that this system has been rigged as they call it."

But the Pentagon's Brigadier General Thomas Hemingway, who is a legal advisor to the military commissions, says an investigation has found the comments are based on miscommunication, misunderstanding and personality conflicts.

He says changes have been made in the prosecutors' office.

"I think what we did is work on some restructuring in the office, there was some changes in the way cases were processed, but we found no evidence of any criminal misconduct, we found no evidence of any ethical violations," he said.

Brig Gen Hemingway says he does not know if the Australian Government has been informed of the claims.

"I can't tell you whether they were informed formally, I have so many contacts with representatives of your embassy here in town, the exchange of information has certainly been constant, open and significant but whether or not we got down into the details of this, I really have no recollection," he said.

"We certainly would have shared it with them if we found that there was any evidence of misconduct in the office of the prosecution, but we did not find any such evidence."

'Sufficient evidence'

Brig Gen Hemingway denies that the cases being prosecuted are low-level.

"All of the cases I have recommended that the appointing authority refer to trial, are cases upon which I thought there was sufficient evidence to warrant sending to a fact-finder," he said.

"In each of the four cases which have been referred, the appointing authority John Alterburgh made an independent determination that the evidence was sufficient to warrant trial."

He also denies that the commission panels are being hand-picked to insure detainees are not acquitted.

"I can tell you that any such assertion is clearly incorrect," he said.

"There is absolutely no evidence that it is rigged."

[marcusdexz]

February 1, 2005

Judge Extends Legal Rights for Guantánamo Detainees

By NEIL A. LEWIS

ASHINGTON, Jan. 31 - A federal judge ruled against the Bush administration on Monday, declaring that detainees at Guantánamo Bay, Cuba, were clearly entitled to have federal courts examine whether they have been lawfully detained.

The judge, Joyce Hens Green of Federal District Court in Washington, rejected the argument that federal courts could not issue writs of habeas corpus for Guantánamo that would require the government to justify the detentions before a judge.

Judge Green said that although the Guantánamo base was in Cuba, the Supreme Court definitively ruled in June that it was not out of the reach of American law as administration officials have argued.

"American authorities are in full control at Guantánamo Bay, their activities are immune from Cuban law," leaving no reason to contend that American law does not apply, she wrote.

"Although this nation unquestionably must take strong action under the leadership of the commander in chief to protect itself against enormous and unprecedented threats," the judge wrote, "that necessity cannot negate the existence of the most basic fundamental rights for which the people of this country have fought and died for well over 200 years."

Judge Green also declared unconstitutional the tribunals that the military established over the summer to review the detentions in the hope of satisfying the Supreme Court ruling. In addition, she questioned whether some of the information used against the detainees had been obtained by torture and was thus unreliable, the first time that problem has been brought up in a judicial opinion.

The Justice Department has contended that federal courts should steer clear of involving themselves in the detention of terror suspects because that is left to the sole discretion of the president in his constitutional role as commander in chief.

But over the last few years, some federal courts have rejected that sweeping assertion.

In June, a divided Supreme Court ruled that the Guantánamo detainees had some rights. But the justices left open the precise nature of how those rights would be exercised.

In essence, the case before Judge Green was part of the second round of litigation to determine how the Supreme Court ruling would affect the flood of habeas corpus petitions on behalf of the Guantánamo detainees.

Although her ruling was a setback for the administration, it was balanced in some sense by a favorable ruling that the Justice Department received this month from another judge in the same courthouse.

Two weeks ago, that second judge, Richard J. Leon, ruled that the Guantánamo detainees, now believed to number about 545, could not be granted writs of habeas corpus and have their detentions examined in federal court.

Judge Leon said the Supreme Court opinion guaranteed only that the detainees could use habeas corpus to file for such relief but that as foreigners detained at Guantánamo, they could not be given any judicial relief.

The different rulings will have to be reconciled in the appeals court, and, many lawyers say, ultimately in the Supreme Court. Judge Green noted that no one would be set free as a result of her opinion.

The Justice Department issued a statement saying its officials agreed fully with Judge Leon.

"We believe the first district court to resolve the claims of enemy combatants detained at Guantánamo did so correctly," the statement said, promising that the government would seek a quick appeal.

The statement said that "aliens captured by the military outside the United States and classified as enemy combatants" were not entitled to constitutional rights just because they happened to be held on "foreign property leased by the United States."

The naval base at Guantánamo was first leased by the United States from Cuba since 1903, and remains an American base, even though Cuba objects.

The reason for the conflict between the courts arose after the government and detainees' lawyers agreed that it was best to have one judge resolve all the cases. As a result, detainees' cases before several other judges were given to Judge Green, except for those filed before Judge Leon, who declined to participate in that accord.

When the cases were argued in December, a sharp contrast between the judges' approaches was noticeable. Judge Leon, appointed to the court by President Bush, was solicitous of the government argument. Judge Green, appointed by President Jimmy Carter, appeared receptive to the detainees' lawyers.

Judge Green, reviewing petitions filed on behalf of more than 50 detainees, also ruled that the special Guantánamo tribunals to satisfy the Supreme Court ruling were unconstitutional. She said those tribunals, in which detainees could not, in most cases, see the evidence against them because it was classified, were inherently unfair.

The judge said withholding incriminating evidence violated the Supreme Court ruling in June that a detainee "must receive notice of the factual basis for his classification and a fair opportunity to rebut the government's factual assertions before a neutral decision maker."

The military said the tribunals, called Combatant Status Review Tribunals, were to determine whether the inmates had been properly deemed unlawful enemy combatants and were thus properly detained. The proceedings, conducted in the prison camp over the last several months, did not allow detainees to have lawyers, nor could they determine the precise charges against them. As a result, Judge Green said, they did not meet minimal standards of constitutional due process.

She also said the information used in those tribunals might be a product of torture, citing recently published disclosures of memorandums by F.B.I. agents who saw Guantánamo detainees being abused, including a widely quoted account by one agent who described seeing inmates chained in uncomfortable positions for many hours and being left to defecate or urinate on themselves.

Judge Green said Mr. Bush had overstepped his authority when he said Taliban fighters captured in Afghanistan were not entitled to the protection of the Geneva Conventions.


Copyright 2005 The New York Times Company

[casinobonuswer]

Pentagon shamefully backed away from the very reasonable condemnation of the US law firms representing Guantanamo detainees. American lawyers undo the injustices inflicted by the American soldiers who fight and die in Afghanistan. Only a handful out of the thousands of detainees was rendered from Afghanistan to Guantanamo; they are not a random crowd. Many of them are not guilty beyond the basic affiliation with Taliban, but guilt of others could not be proven. What evidence of terrorist activity, acceptable in the court of law, could be found in Afghanistan? In the absence of documents or wiretaps, evidence is reduced to testimonies of dubious witnesses. The image of selfless American attorneys - people of great moral integrity - engaged in pro bono defense of Afghan peasants is hilarious. In the pro bono affair, leftist lawyers sabotage the American war effort, and other attorneys shamelessly use it for self-promotion.

[M1iFiNmC]

Why don't rattlesnakes bite lawyers?

Professional courtesy.

[_tppga_]

In the pro bono affair, leftist lawyers sabotage the American war effort, and other attorneys shamelessly use it for self-promotion.

Interesting opinion ...

Do you have any links / facts to back up your assertion that the lawyers acting pro-bono for Guantanamo detainees are "leftist"?

Or how their actions defending unconvicted detainees acts as a "sabotage" of the American war effort?