On Sept. 11, 2001, Marine Lt. Col. Stuart Couch’s friend died co-piloting the second plane to hit the World Trade Center. Soon after, Couch became one of the first military prosecutors assigned to the U.S. military base at Guantánamo Bay to prosecute men alleged to have carried out the terrorist plot. He ultimately would refuse to prosecute one detainee: Mohamedou Ould Slahi. “It became clear that what had been done to Slahi amounted to torture,” Couch says. “Specifically, he had been subjected to a mock execution. He had sensory deprivation. He had environmental manipulation; that is, cell is too cold, or the cell is too hot. … He was presented with a ruse that the United States had taken custody of his mother and his brother and that they were being brought to Guantánamo.” Couch says he concluded Slahi’s treatment amounted to illegal torture. “I came to the conclusion we had knowingly set him up for mental suffering in order for him to provide information,” Couch said. “We might very well have a significant problem with the body of evidence that we were able to present as to his guilt.”
Tag: Military Commissions
Feb 26 2013
Oct 18 2012
The United States Court of Appeals for the District of Columbia Circuit overturned the conviction of Salim Ahmed Hamdan for providing material support for terrorism. Hamdan, a Yemeni, was captured in Afghanistan in 2001
The court ruled that the conviction could not stand because ,at the time of Handan’s conviction “under the international law of war in effect at the time of his actions, there was no such defined war crime”:
The Military Commission Act, a law passed in 2006, does not authorize such retroactive prosecutions, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit ruled. [..]
The ruling called into question whether other Guantanamo detainees accused of being part of Al Qaeda but not of plotting any specific terrorist attack can receive military trials.
The opinion was written by Judge Brett Kavanaugh, who worked as a lawyer in the White House for President George W. Bush before he was appointed to the bench. His opinion was largely joined by Chief Judge David Sentelle and Judge Douglas Ginsburg, appointees of Ronald Reagan.
Zachary Katznelson, senior staff attorney at the American Civil Liberties Union, said the decision “strikes the biggest blow yet against the legitimacy of the Guantánamo military commissions, which have for years now been trying people for a supposed war crime that in fact is not a war crime at all.” He said the government should prosecute in civilian courts any Guantánamo prisoners against whom it has enough admissible evidence.
There are two additional issues I would like to highlight today that are not addressed by the Committee bill that we believe should be considered. The first is the offense of material support for terrorism or terrorist groups. While this is a very important offense in our counterterrorism prosecutions in Federal court under title 18 of the U.S. Code, there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war. The President has made clear that military commissions are to be used only to prosecute law of war offenses. Although identifying traditional law of war offenses can be a difficult legal and historical exercise, our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.
The DC court agreed:
First, despite Hamdan’s release from custody, this case is not moot. This is a direct appeal of a conviction. The Supreme Court has long held that a defendant’s direct appeal of a conviction is not mooted by the defendant’s release from custody.
Second, consistent with Congress’s stated intent and so as to avoid a serious Ex Post Facto Clause issue, we interpret the Military Commissions Act of 2006 not to authorize retroactive prosecution of crimes that were not prohibited as war crimes triable by military commission under U.S. law at the time the conduct occurred. Therefore, Hamdan’s conviction may be affirmed only if the relevant statute that was on the books at the time of his conduct – 10 U.S.C. § 821 – encompassed material support for terrorism.
Third, when Hamdan committed the relevant conduct from 1996 to 2001, Section 821 of Title 10 provided that military commissions may try violations of the “law of war.” The “law of war” cross-referenced in that statute is the international law of war. See Quirin, 317 U.S. at 27-30, 35-36. When Hamdan committed the conduct in question, the international law of war proscribed a variety of war crimes, including forms of terrorism. At that time, however, the international law of war did not proscribe material support for terrorism as a war crime. Indeed, the Executive Branch acknowledges that the international law of war did not – and still does not – identify material support for terrorism as a war crime. Therefore, the relevant statute at the time of Hamdan’s conduct – 10 U.S.C. § 821 – did not proscribe material support for terrorism as a war crime.
Because we read the Military Commissions Act not to retroactively punish new crimes, and because material support for terrorism was not a pre-existing war crime under 10 U.S.C. § 821, Hamdan’s conviction for material support for terrorism cannot stand. We reverse the judgment of the Court of Military Commission Review and direct that Hamdan’s conviction for material support for terrorism be vacated.
This ruling could obviously effect the convictions and prosecutions of other Guantánamo detainees. The Administration has yet to announce whether it will appeal, I suspect that they will try.
Apr 14 2011
The Obama administration has gone over to the dark side with stretching the “terrorist” category, going far further that Bush or Cheney would ever had dreamed. They have now compared an uprising in 1818 by the Seminole tribes in Florida to Al Qaeda to justify prosecutions of detainees at Guantanamo
Bitter analogy in war crime case: Indians, al Qaeda
By Carol Rosenberg
Seminoles in 1818 similar to al Qaeda in 2001? Some Pentagon prosecutors appeared to make this analogy to support a Guantánamo war crimes conviction, then clarified in a war court filing.
Pentagon prosecutors touched off a protest – and issued an apology this week – for likening the Seminole Indians in Spanish Florida to al Qaeda in documents defending Guantánamo’s military commissions.
Citing precedents, prosecutors reached back into the Indian Wars in arguments at an appeals panel in Washington D.C. Specifically, they invoked an 1818 military commission convened by Gen. Andrew Jackson after U.S. forces invaded then-Spanish Florida to stop black slaves from fleeing through a porous border – then executed two British men for helping the Seminole Indians.
Navy Capt. Edward S. White also wrote this in a prosecution brief:
“Not only was the Seminole belligerency unlawful, but, much like modern-day al Qaeda, the very way in which the Seminoles waged war against U.S. targets itself violate the customs and usages of war.”
A native American advocacy group complained to the military court. Defense lawyers for two Yemenis convicted of war crimes at Guantánamo countered that the behavior of Jackson, the future U.S. president now on the $20 bill, was no shining example of American military justice.
A politically ambitious Jackson, defense lawyers wrote, waged “an illegal war” that set fire to entire Indian villages “in a campaign of extermination.”
In the legal precedent, U.S. troops convicted two British traders, Alexander Arbuthnot and Robert Ambrister, for helping the Seminoles and escaped slaves and sentenced them to a whipping. Jackson, a slave owner, declared the punishment too soft. He had them executed.
Florida historians are familiar with the episode.
“Arbuthnot was hanged from the yard arm of his own ship,” said University of Florida history professor Jack Davis. “Ambrister was killed by firing squad.”
At issue in the Court of Military Commissions Review is whether a newly minted post 9/11 war court crime – providing material support for terror – is legitimate for prosecution at a war crimes tribunal.
Marcy Wheeler at FDL comments that “our government is siding with slavery, genocide of Native Americans, and Andrew Jackson’s illegal belligerency, it is citing our own country’s illegal behavior-to find some support for the claim that material support is a military crime.”
Defense Department general counsel Jeh Johnson sent a letter of apology to the Seminole tribe but didn’t back away from the analogy.
But Defense Department general counsel Jeh Johnson made clear in the single-page letter that the U.S. government was standing by its precedent from Gen. Andrew Jackson’s Indian Wars in its bid to uphold the life-time conviction of Osama bin Laden’s media secretary at Guantánamo’s Camp Justice.
Johnson delivered a speech at the Pentagon in commemoration of Martin Luther King day that twisted Dr. King’s antiwar philosophy into support for the Afghan and Iraq wars.
What Marcy said:
And so it is that our government clings desperately to one of the darkest chapters of our history to legitimize its current actions. Rather than reflect on what that means-how damning it is that we can point only to Andrew Jackson’s illegal treatment of Native Americans to justify our current conduct-the government says simply, “a precedent is a precedent!”
Obama’s boys have now thrown Native Americans under the bus. Welcome, my friends, you have lots of company.
Mar 09 2011
Cross posted from The Stars Hollow Gazette
Two years and two months ago the American people hailed a new President and an end to our national nightmare of the Bush reign of eight years of trampling the Constitution, the laws that govern and the economy. Since then the reality that nothing has changed comes down with crashing reality. This President, Barack Hussein Obama, is as complicit as the last President in the war on the US Constitution, International laws and treaties and human rights. Today it became evidently clear that Obama is not Bush, he’s Cheney.
Today Obama issued an Executive Order (pdf) that not only will restart the Military Commissions at Guantanamo but also orders indefinite detention for forty seven detainees without any of them ever being charged with a crime. Why? Because Obama is covering up the war crimes of the previous administration which, according to the Nuremberg Principles, is a war crime. Claims that the evidence against these men would harm national security just rings hollow.
Marcy Wheeler at FDL explains that “the new and improved Military Detention Regime has two parts”. The first part relates to the indefinite detention polices without anything other than a claim of “because I say it’s justified”:
“Continued law of war detention is warranted for a detainee subject to the periodic review in section 3 of this order if it is necessary to protect against a significant threat to the security of the United States.“
. . . .this doesn’t appear to tie to any wrong-doing on the detainee’s part. “It” here appears to refer to “continued law of war detention,” suggesting that “it” may be necessary regardless of any threat posed by the detainee himself.
Also note that the standard “significant threat to the security of the United States” doesn’t invoke the war (ostensibly, the war against Afghanistan) itself. This seems very very wrong. It also seems designed to authorized the continued detention of the Yemeni detainees who we admit aren’t themselves a threat, but must be detained, our government says, because they come from a dangerous country.
(all emphasis mine)
The EO also restarts the Military Commissions where evidence that has been attained through torture is admissible.
Dana Milbank, in his Op-Ed, remarked that the conference call with reporters and “some top-notch lawyers from across the executive branch” with “ground rules required that the officials not be identified”, sounded very much like what the Bush lawyers used to say:
It was another important moment in the education of Barack Obama.
He began his presidency with a pledge to close the military prison at Guantanamo Bay within a year. Within months, he realized that was impossible. And now he has essentially formalized George W. Bush’s detention policy.
Even the Tea Baggers, like newly minted Senators Rand Paul (R-KY) and Mike Lee(R-UT), are saying indefinite detention is wrong and calling for trials in civilian courts:
Fox News contributor Andrew Napolitano, subbing for Glenn Beck on his television show, hosted Sens. Rand Paul (R-KY) and Mike Lee (R-UT) to talk about a variety of issues. At one point, Napolitano mentioned Obama’s announcement and queried the two senators about their positions on indefinite detention. Lee and Paul both broke with the standard positions of their party, slamming the policy and endorsing trials for terrorism suspects instead. Paul said that he had met with a mother of a 9/11 victim who said that what she really wanted to see was justice, and that the best way to do that was to “have trials.” Lee said that detaining someone who “has been tried and found not guilty” is “particularly problematic”
Human Rights Watch points out that 47 of these men will never be tried. Those detainees will be able to “submit documentary evidence every six months, but will only go before the full panel once every three years”. However, as the press release states, “the use by the US of indefinite detention without trial still fails to meet the most basic elements of due process under international law”.
While Obama’s EO confirms the administration’s commitment to prosecuting some cases in civilian courts
“Is added review an improvement? Yes. Does it make US detention policies lawful? No,”
said Andrea Prasow, senior counterterrorism counsel at Human Rights Watch. “Signing an executive order does not suddenly make it legal to lock people up and hold them forever without proving they have committed a crime.”
HRW further notes:
. . .compared to federal courts, military commissions have moved very slowly. During the nine years since the military commissions were first announced, military prosecutors have brought only six cases to completion, four of them by plea bargain. Federal courts, in contrast, have prosecuted hundreds of terrorism-related offenses during the same period, convicting, among others, 9/11 conspirator Zacarias Moussaoui and “shoe bomber” Richard Reid.
“Any trial in the military commission system carries the stigma of Guantanamo and will be tainted by a lack of due process,” Prasow said. “A verdict in the federal court system, in contrast, would be recognized internationally as legitimate.”
As I read through the executive order and news articles, all that I could think of was that surely, Dick Cheney will approve.
Mar 21 2010
Military Commissions: Ritualized “justice” to cover-up torture, murder, & innocence.
Obama’s flip-flopping on the use of military commissions means, apparently, we can never turn the page on BushCo, which permanently broke the Constitution. The law is still subject to whims of stubborn rulers, justice is arbitrary, and “the days of compromising our values” are definitely not over.
“[Haynes] said these trials will be the Nuremberg of our time,” recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.
“I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Davis continued. “At which point, [Haynes’s] eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions.'”
Col. Davis honorably resigned.
Contrast Hayne’s view of the law with that of Retired Rear Admiral John D. Hutson, who served as a Judge Advocate in the US Navy from 1973 to 2000, and was the Navy’s Judge Advocate General from 1997 to 2000:
“You can’t have a legitimate court unless you are willing to risk an acquittal. If you aren’t willing to accept the possibility that a jury will acquit the accused based on the evidence fairly presented, then it isn’t really a court. It’s a charade.”
Jul 08 2009
House Judiciary Subcommittee Hearing on: Legal Issues Surrounding the Military Commissions System
Wednesday 07/08/2009 – 10:00 A.M.(Eastern)
Here’s the list of Rep’s who are on this Subcommittee, includes mine (Jackson Lee).
Yes, Im reminding myself! On my way to bed. Will edit in the morning. If I remember! lol Should be on C-Span.
UPDATE: Missed it, couldnt find it and got busy. See below for updates from Greenwald’s column today.
Hon. Adam B. Schiff
U.S. House of Representatives
29th District, CA
Lt. Col Darrel J. Vandeveld
Guantánamo Bay Military Commissions
Deborah N. Pearlstein
Associate Research Scholar
Woodrow Wilson School of Public and International Affairs
Foundation for Defense of Democracies
Denise “Denny” LeBoeuf
American Civil Liberties Union
New Orlean, LA
Jun 06 2009
Cross posted from The Dream Antilles
According to the New York Times, the Obama Administration may modify the military commission rules to
permit require have Gitmo prisoners plead guilty and be executed:
The Obama administration is considering a change in the law for the military commissions at the prison at Guantánamo Bay, Cuba, that would clear the way for detainees facing the death penalty to plead guilty without a full trial.
The provision could permit military prosecutors to avoid airing the details of brutal interrogation techniques. It could also allow the five detainees who have been charged with the Sept. 11 attacks to achieve their stated goal of pleading guilty to gain what they have called martyrdom.
May 28 2009
This essay is partly in response to Something The Dog Said’s essay on military commissions – I did not want to hijack the discussion there.
I am both a lawyer with a bit of training in international law and an officer of our armed forces (Switzerland, depository nation of the Geneva Conventions), which colours my view in this matter.
First off, I do not see anything intrinsically wrong with military commissions; the questions I have is:
– What is the objective?
– Who will come before the military commissions?
– Why bother?
May 27 2009
Last week the President made a speech about the closing of Guantanamo Bay Prison. Most of us politically savvy (obsessed?) folks have heard it and heard some of the various analysis of it. One area of concern was the President’s contention that, due to factors which happened in the previous administration, he might not be able to try all of the accused prisoners in Federal Courts as he had previously promised. He went further to saying he thought that a revamped Military Commissions structure could be used to do the job, and thus avoid trying these men in Federal Court.
May 23 2009
Crossposted from Antemedius
The other day, after Barack Obama’s speech at the National Archives Building in Washington, the New York Times printed a “news analysis” piece that was one of the most offensive pieces of manipulation I think I’ve ever read, in it’s oh so reasonable sounding efforts (probably successful with the vast majority who read it) to marginalize and equate with neanderthals and the far right wing anyone who is not interested in becoming terrorists to fight invented terrorism, with it’s interpretation of Obama’s statements in his speech:
He must convince the country that it is in safe hands despite warnings to the contrary from the right, and at the same time persuade the skeptical left that it is enough to amend his predecessor’s approach rather than abandon it.
In the reductionist debate in Washington, either any sacrifice must be made to win a pitiless war against radicals, or terrorism does not justify any compromise with cherished American values.
Unfortunately, Barack Obama seems to be in complete agreement with the NYT’s manipulations of public opinion:
“Both sides may be sincere in their views, but neither side is right,” Mr. Obama said. “The American people are not absolutist, and they don’t elect us to impose a rigid ideology on our problems. They know that we need not sacrifice our security for our values, nor sacrifice our values for our security, so long as we approach difficult questions with honesty and care and a dose of common sense.”
Today, Michael Ratner, President of the Center for Constitutional Rights, talks with Real News Network CEO Paul Jay with his own analysis of Obama’s speech and his determination to “legalize” the Military Commissions set up under George Bush with the 2006 Military Commissions Act (MCA).
May 18 2009
Crossposted from Antemedius
RawStory is reporting this morning that “The Bush administration was given clear and unequivocal advice encouraging a detainee interrogation system that followed humane practices that adhered to US and international law…”
“A detailed memorandum authored by a counselor to former Secretary of State Condoleezza Rice in 2005 also reveals that the Bush Administration was offered a comprehensive alternative to its use of torture techniques. The author, Rice deputy Philip Zelikow (along with then-acting deputy secretary of defense Gordon England), asserted that the adoption of a clear and humane approach to interrogation would pay dividends for the US in the years to come.”
The Zelikow/England draft memo (.PDF) stamped “Sensitive But Unclassified” was apparently written in June 2005, and was published May 14, 2009 in a post by Steven Aftergood at Secrecy News, a Federation of American Scientists project website.
Jan 22 2009
+++ Update: Here’s a link to the draft executive order’s text +++
Like attacking a hydra with many heads, the new administration is planning to take its first whacks at the torture regime set up by the Bush Administration. It’s most infamous manifestation lies 90 miles off the U.S. coast at Guantanamo Naval Base, Cuba.
Today, the government ordered a 120-day suspension of the military tribunal hearings of the Guantanamo detainees, as well as lesser delays in habeas hearings filed by attorneys on behalf of some of the prisoners.
Now, breaking news reported at ABC News, reports that tomorrow we will see three executive orders issued by President Obama aimed at the closure of Guantanamo “within a year”, and promising immediate changes in the procedures and policies surrounding interrogation of detainees, and the conditions of their detention.