The Washington Independent » imperial presidency

John Yoo Wins Battle of ‘The Daily Show’

Spencer Ackerman — Tue, 12 Jan 2010 16:43:29 +0000

It’s a testament to Jon Stewart’s extraordinary abilities to speak sensibly in an age of insanity that we expect him to skewer knaves like John Yoo, the former Office of Legal Counsel torture advocate, who appeared on “The Daily Show” last night. Stewart has a great command of the facts and of his medium. Still, maybe it shouldn’t disappoint us to recognize that Yoo skillfully deflected most of Stewart’s assaults.

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Yoo’s being pretty disingenuous here. The August 1, 2002 OLC memo on torture isn’t about perishable circumstances shortly after 9/11. It’s about the scope of executive power — and exclusive, inherent executive power. Yoo tells Stewart that Congress or the courts could rein in a rogue president on his conduct of a war. Yet his consistent view, as expressed in the memo, is that there’s pretty much nothing Congress can do during wartime short of cutting off funding, a politically extreme step.

Maybe people should give Yoo credit for picking his speaking venues.

Surprise! John Yoo Believes in Broad Executive Powers

Daphne Eviatar — Tue, 05 Jan 2010 00:42:29 +0000

Former Deputy Assistant Attorney General John Yoo has been spewing his grandiose views on presidential power ever since leaving the Bush administration. So although his latest book, “Crisis And Command,” is an unusually ambitious 446-page historical survey of executive power from George Washington to George W. Bush, his thesis will hardly surprise anyone who’s followed his recent career.

Max Boot writes in his blurb for the book that it’s “not the work of some wild-eyed zealot,” but the book is clearly another of Yoo’s attempts to defend his more extreme legal theories, including those that have been roundly criticized by prominent Republicans who served in the Bush administration. Many of those theories — such as the executive’s right to authorize torture and to detain terror suspects indefinitely — are responsible for some of the worst conundrums that President Obama finds himself in today.

Whether cast as Hamiltonian or Machiavellian, Yoo’s point is that “great” presidents have always interpreted their powers broadly in times of crisis, and pesky critics at the time always denounced them for breaking the law. To illustrate this, Yoo rolls out the usual examples — Abraham Lincoln suspending habeas corpus during the Civil War, and Franklin Delano Roosevelt interning the Japanese during World War II.

Although careful not to call George W. Bush a “great” or even “above-average” president, Yoo argues that Bush’s decisions to suspend habeas corpus, use “coercive interrogation methods” (Yoo never uses the word torture) and indefinitely detain without charge “al Qaeda terrorists” (actually, terror suspects) were all simply par for the course — the actions any decent president would take under the circumstances. In Yoo’s view, this is not presidential lawbreaking, even if the president’s actions do violate existing laws. Rather, Yoo argues, the Constitution accommodates such lawbreaking — what Yoo calls “the need to respond to extraordinary events through the President’s executive power” — which apparently is limitless.

This is how, at the Office of Legal Counsel, Yoo managed to advise the president that he could ignore the legal bans on torture and even the Bill of Rights on U.S. soil. It’s too soon to know if that was wrong, Yoo says, since we’re still confronting the terrorist threat. “Only when we have the benefit of distance will we know whether Bush’s aggressive use of executive authority was too much, too little, or just right,” he writes, so complaints about torture and warrantless wiretapping are little more than Monday-morning quarterbacking.

It’s worth remembering that Yoo, now a law professor at University of California – Berkeley, is the subject of a still-unreleased ethics investigation as well as a pending lawsuit, both of which address charges that he not only misconstrued the law but was actively involved in breaking it. His aggressive defense of limitless executive authority sounds even shadier when read in that light.

But Yoo is at his most disingenuous when he criticizes President Obama. In his afterword, Yoo writes that under Obama’s executive orders, the CIA now must conduct interrogations according to the rules of the Army Field Manual — which “amounts to requiring — on penalty of prosecution — that CIA interrogators be polite.”

In fact, the Army Field Manual allows for prolonged isolation, sleep deprivation, sensory deprivation, and inducing fear and humiliation of prisoners, as the Center for Constitutional Rights and others have noted. These can be used in combination, and can cause, as former Bush appointees and a congressional investigation have found, long-lasting psychological and physical harm.

Nonetheless, doing away with “the Bush system” means “we will get little timely information from captured al Qaeda terrorists,” Yoo asserts, especially if Obama allows them trials in federal court.

Yoo’s book was released too soon for his own good. Within just the last two weeks we’ve learned that an al-Qaeda terror suspect who tries to blow up a plane can be captured, arrested, charged in federal court and promptly provide information about others planning similar attacks on U.S. targets.

If Yoo’s views weren’t already thoroughly discredited, that last section of his book does the job — which just goes to show that Professor Yoo really should have stayed in academia. Yoo may have good stories to tell about the theories of executive power at work under Madison, Truman and Roosevelt, but when he applies theory to practice he fails miserably. Unfortunately, that’s not just a problem for his publisher. The entire nation is suffering for it now.

Gitmo Habeas Scoreboard — Government Wins

TWI — Wed, 16 Dec 2009 20:09:00 +0000

Detainees	U.S. Government
32	11

Below is a list of the Guantanamo habeas corpus cases in which the U.S. government won. Information compiled by Pro Publica and David Remes, legal director of Appeal for Justice.

Moath Hamza Ahmed Al Alwi

Nationality:Yemeni
Circumstances of Capture:Arrested in Pakistan by Pakistani authorities in late 2001 and transferred to US custody.
Summary of Allegations:The government alleged that Al Alwi stayed at guesthouses and received military training at camps closely associated with al-Qaeda and the Taliban, that he supported Taliban fighters (including after the U.S. forces arrived in October 2001), and that he served as a bodyguard to Osama bin Laden.
Status:Judge denied release Dec. 30, 2008. Al Alwi is appealing the decision and remains at Guantanamo.
Reason for Court’s Decision:The judge said that “more than ample evidence” proves Al Alwi stayed at Qaeda and Taliban guesthouses and trained with and supported the Taliban. This was enough to justify his indefinite detention, even without persuasive evidence that Al Alwi had taken up arms himself against the U.S. or its allies. Since this conduct alone justified his detention, the judge said, there was no need for the court to address the allegations that Al Alwi had been a bin Laden bodyguard and trained with al-Qaeda.
Court Documents:

Ghaleb Nassar Al Bihani

Nationality:Born in Saudi Arabia, citizen of Yemem
Circumstances of Capture:Surrendered to the Northern Alliance near the Pakistan-Afghanistan border in or after late November 2001; transferred to US custody in June 2002.
Summary of Allegations:The government alleged that sometime after May 2001 Al Bihani received military training at an al-Qaeda camp in Afghanistan and joined a Taliban military unit that fought against the Northern Alliance, retreating with that unit in late November 2001, after the U.S. and allies began bombing.
Status:Judge denied release January 2009. Al Bihani appealed the decision, but the D.C. Circuit Court ruled in favor of the government on Jan. 6.
Reason for Court’s Decision:The judge said proof that Al Bihani had served as a cook for the Taliban by itself justified his imprisonment. He said that “faithfully serving in an al-Qaeda affiliated fighting unit that is directly supporting the Taliban by helping to prepare the meals of its entire fighting force is more than sufficient ‘support’” to qualify for indefinite detention.
Court Documents:

Musa’ab al-Madhwani

Nationality:Yemeni
Summary of Allegations:The government alleged that al-Madhwani went to Pakistan to join al-Qaeda and trained and traveled with al-Qaeda members. It also claims he was involved in a firefight with Pakistani authorities.
Status:Judge denied release Dec. 14, 2009. Al-Madhwani remains at Guantanamo.
Reason for Court’s Decision:The judge said there was no evidence that al-Madhwani’s testimony was tainted by abusive interrogation techniques, and that the government sufficiently proved its allegations.

Suleiman Awadh Bin Agil al-Nahdi

Fawzi Al-Odah

Nationality:Kuwaiti
Circumstances of Capture:Captured by Pakistani border guards in November 2001.
Summary of Allegations:The government alleged that Odah admitted firing an AK-47 at a training camp in Afghanistan and carrying an AK-47 through the Tora Bora mountains for ten to 11 days during the U.S. air campaign there.
Status:Judge denied release Aug. 24, 2009.
Reason for Court’s Decision:The judge found that Odah had attended a Taliban training camp, and that “more likely than not,” he “became a part of the forces of the Taliban and Al Qaeda.”
Court Documents:

Trial Court Decision

Adham Mohammed Ali Awad

Nationality:Yemeni
Circumstances of Capture:Captured in Afghanistan in November 2001.
Summary of Allegations:The government alleged that Awad was identified by a senior al-Qaeda leader as having participated in fighting against the U.S.
Status:Judge denied release Aug. 12, 2009.
Reason for Court’s Decision:Although the judge found the case against Awad “gossamer thin,” he ruled it was “more likely than not” that Awad was, “for some period of time, ‘part of’ Al Qaida.”
Court Documents:

Sufyian Barhoumi

Nationality:Algerian
Circumstances of Capture:Captured in Pakistan in March 2002.
Summary of Allegations:The government alleged that Barhoumi traveled to Afghanistan in 1999 to attend weapons training in several camps, then trained others, and engaged in hostilities against the U.S.
Status:Judge denied release Sept. 3 2009.
Reason for Court’s Decision:The judge’s opinion has not yet been declassified.
Court Documents:

Belkacem Bensayah

Nationality:Algerian
Circumstances of Capture:Arrested by Bosnian authorities in October 2001 on suspicion of plotting to bomb the U.S. embassy in Sarajevo. Cleared for release January 2002, but transported to Guantanamo at request of U.S. military.
Summary of Allegations:Government alleged that Bensayah planned to travel to Afghanistan in late 2001 and to fight U.S. and allied forces, and that he was al-Qaeda’s primary facilitator and financier in Bosnia and Herzegovina.
Status:Judge denied release Nov. 20, 2008. Bensayah has asked the court to reopen the case, alleging there is government evidence of his innocence that the judge didn’t see. Government has opposed his request. Bensayah remains at Guantanamo.
Reason for Court’s Decision:Although Bensayah’s five countrymen were found to be unlawfully detained, the judge said the government had produced “additional evidence that sufficiently corroborates its allegations from [an] unnamed source that Bensayah is an al-Qaida [sic] facilitator.
Court Documents:

Hedi Hammamy

Nationality:Tunisian
Circumstances of Capture:Arrested in April 2002 in Pakistan by Pakistani authorities and transferred to U.S. custody.
Summary of Allegations:The government alleged that Hammamy fought with the Taliban or al-Qaeda against the U.S., belonged to an Italian terrorist cell supporting Islamic terrorist groups, attended a terrorist training camp in Afghanistan, and belonged to a Pakistan-based organization too secret for the government to describe.
Status:Judge denied release April 4, 2009. Hammamy is appealing the decision and remains at Guantanamo.
Reason for Court’s Decision:The judge said that evidence that Hammamy had fought the U.S. and belonged to the Italian terrorist cell justified his detention. The judge didn’t address the other allegations.

Hisham Sliti

Nationality:Tunisian
Circumstances of Capture:Captured in Pakistan in December 2001.
Summary of Allegations:The government alleged that in 2000 Sliti traveled from London to Afghanistan on a false passport as a Qaeda recruit, stayed at a Qaeda-affiliated guesthouse and mosque, received military training at a Qaeda camp, and helped start a terrorist organization with ties to al-Qaeda.
Status:Judge denied release Dec. 30, 2008. Sliti is appealing the decision and remains at Guantanamo.
Reason for Court’s Decision:The judge found that, other than for the allegation that Sliti had helped found a terrorist organization, the government had produced evidence sufficient to justify Sliti’s indefinite detention.
Court Documents:

Gitmo Habeas Scoreboard — Detainee Wins

TWI — Wed, 16 Dec 2009 20:08:53 +0000

Detainees	U.S. Government
32	9

Below is a list of the Guantanamo habeas corpus cases in which the detainee won. Information compiled by Pro Publica and David Remes, legal director of Appeal for Justice.

Click here to see the 21 detainees who have been released.

Click here to see the 11 detainees who are still in custody.

Released

Abdul Ghappar Abdul Rahman

Nationality:Chinese (Uighur)
Circumstances of Capture:Captured in December 2001 by Pakistani civilians, handed over to Pakistani authorities, transferred to US military for $5,000.
Summary of Allegations:The government alleged that he was affiliated with a Uighur (Chinese ethnic minority) independence group know as the East Turkistan Islamic Movement, from which he received weapons training. ETIM was alleged to be associated with al-Qaeda and the Taliban and engaged in hostilities against the U.S. and allies.
Status:Determined by government to be eligible for release August 2003. Federal trial judge ordered Rahman released Oct. 8, 2008. The government appealed, and judge’s release order was blocked by D.C. federal appeals court. He was transferred to Palau on Oct. 31, 2009. In October, the Supreme Court agreed to hear the Uighurs’ appeal of their case.
Reason for Court’s Decision:The D.C. federal appeals court decided on June 20, 2008, that the government had failed to present enough reliable evidence to prove key allegations — that ETIM was linked to al-Qaeda and the Taliban, and that ETIM was hostile to the U.S.”
Court Documents:

Dawut Abdurehim

Nationality:Chinese (Uighur)
Circumstances of Capture:Captured December 2001 in Pakistan by Pakistani civilians, handed over to Pakistani authorities, then transferred to U.S. military for$5,000.
Summary of Allegations:The government alleged that he was affiliated with a Uighur (Chinese ethnic minority) independence group know as the East Turkistan Islamic Movement, from which he received weapons training. ETIM was alleged to be associated with al-Qaeda and the Taliban and engaged in hostilities against the U.S. and allies.
Status:Determined by government to be eligible for release August 2003. Federal trial judge ordered Abdurehim released Oct. 8, 2008, but the government appealed, and the release order was blocked by the D.C. federal appeals court. He was transferred to Palau on Oct. 31, 2009. In October, the Supreme Court agreed to hear the Uighurs’ appeal of their case.
Reason for Court’s Decision:The D.C. federal appeals court decided on June 20, 2008, that the government had failed to present enough reliable evidence to prove key allegations — that ETIM was linked to al-Qaeda and the Taliban, and that ETIM was hostile to the U.S.”
Court Documents:

Abdulrahim Abdul Razak Al Janko

Nationality:Syrian
Circumstances of Capture:Captured by U.S. forces in January 2002 in Kandahar, Afghanistan.
Summary of Allegations:The government alleged that, in early 2000, Janko spent five days at a Taliban guesthouse and trained for 18 days at a Qaeda military camp.
Status:Judge found Janko eligible for release June 22, 2009. He has since been transferred to a foreign nation, but the government will not specify which nation or reveal the date of transfer.
Reason for Court’s Decision:Judge found Janko eligible for release June 22, 2009, but the government continues to hold him at Guantanamo. Janko was eligible for release, the judge said, because by the time of his arrest in 2002 he should not have been considered to be part of the Taliban or al-Qaeda. The evidence showed that he’d been tortured by al-Qaeda and imprisoned for 18 months by the Taliban in an infamously “horrific” prison.
Court Documents:

Khalid Abdullah Mishal Al Mutairi

Nationality:Kuwaiti
Circumstances of Capture:Captured near Pakistan-Afghanistan border in November 2001
Summary of Allegations:The government alleged that Al Mutairi was a part of al-Qaeda or of a force associated with al-Qaeda, because, among other claims, he’d attended a training camp believed to be affiliated with al-Qaeda.
Status:On July 29, 2009, judge ordered the government to “take all necessary and appropriate steps to facilitate Al Mutairi’s release forthwith.” He was transferred to Kuwait on Oct. 13, 2009.
Reason for Court’s Decision:The judge concluded that “there is nothing in the record beyond speculation” to prove the government’s allegations. Intelligence reports were too impreciseand needed corroborating proof, she said. For instance, “one reference, in a portion of one sentence, in one interrogation report,” was not enough to prove Al Mutairi had attended a terrorist training camp, because the report didn’t clearly identify him. She rejected one self-incriminating statement from an interrogation of Al Mutairi because “he appears to have been goaded into making these statements.”
Court Documents:

Alla Bin Ali Ahmed

Nationality:Yemeni
Circumstances of Capture:Captured March 2002 at a guesthouse for Yemenis in Faisalabad, Pakistan.
Summary of Allegations:The government alleged that Ali Ahmed had traveled and stayed with al-Qaeda and/or Taliban members in Afghanistan, and that he’d fought and trained in Afghanistan.
Status:Judge found Ali Ahmed eligible for release May 11, 2009. He was transferred to Yemen on September 26, 2009.
Reason for Court’s Decision: Judge concluded that the government had failed to present reliable evidence proving its allegations, and that certain alleged conduct — such as traveling in the company of terrorists and staying at a suspect guesthouse — wouldn’t be enough to detain Ali Ahmed even if proved.
Court Documents:

Fouad Mahmoud Al Rabiah

Nationality:Kuwaiti
Circumstances of Capture:Captured near the Afghanistan/Pakistan border in Dec. 2001.
Summary of Allegations:The government alleged that Rabiah “provided material support to the Taliban and al Qaida,” meeting with bin Laden four times in July 2001 and delivering money to him.
Status:Judge ordered release Sept. 17, 2009. Rabiah was transferred to Kuwait on Dec. 9, 2009.
Reason for Court’s Decision:Judge ordered release Sept. 17, 2009. The judge found that the evidence against Rabiah consisted “almost exclusively on Rabiah’s ‘confessions,’” which even Rabiah’s interrogators concluded were “not believable.”
Court Documents:

Hadj Boudella

Nationality:Algerian
Circumstances of Capture:Arrested by Bosnian authorities in October 2001 on suspicion of plotting to bomb the U.S. embassy in Sarajevo. Cleared for release January 2002, but transported to Guantanamo at request of U.S. military.
Summary of Allegations:The government mainly alleged that he’d planned to travel to Afghanistan in late 2001 to fight the U.S. and allied forces.Also that he associated with al-Qaeda and other suspected terrorists and that he’d worked for a Qaeda-affiliated organization that provided material support to terrorists.
Status:Judge ordered release Nov. 20, 2008. Boudella was transferred to Bosnia and Herzegovina Dec. 16, 2008.
Reason for Court’s Decision:Judge decided the government failed to prove its allegations by a preponderance (majority) of the evidence. “[T]he Government relies exclusively on the information contained in a classified document from an unnamed source,” wrote the judge. This single piece of evidence “is not sufficient” to prove the legality of detention, he said.
Court Documents:

Lakhdar Boumediene

Nationality:Algerian
Circumstances of Capture:Arrested by Bosnian authorities in October 2001 on suspicion of plotting to bomb the U.S. embassy in Sarajevo. Cleared for release January 2002, but transported to Guantanamo at request of US military.
Summary of Allegations:The government mainly alleged that he’d planned to travel to Afghanistan in late 2001 to fight the U.S. and allied forces.Also that he associated with al-Qaeda and other suspected terrorists and that he’d worked for a Qaeda-affiliated organization that provided material support to terrorists.
Status:Judge ordered release Nov. 20, 2008. Boumediene was transferred to France May 15, 2009.
Reason for Court’s Decision:Judge decided the government failed to prove its allegations by a preponderance (majority) of the evidence. “[T]he Government relies exclusively on the information contained in a classified document from an unnamed source,” wrote the judge. This single piece of evidence “is not sufficient” to prove the legality of detention, he said.
Court Documents:

Mohammed El Gharani

Nationality:Born in Saudi Arabia, citizen of Chad
Circumstances of Capture:Arrested by Pakistani authorities and turned over to the United States in early 2002.
Summary of Allegations:The government alleged that he’d stayed at a Qaeda-affiliated guesthouse in Afghanistan, received military training at a Qaeda camp, served as a courier for al-Qaeda members, fought the U.S. and allies at the battle of Tora Bora, and belonged to a Qaeda cell based in London.
Status:Judge found El Gharani eligible for release Jan. 13, 2009. He was transferred to Chad on June 11, 2009.
Reason for Court’s Decision:The government’s evidence was unreliable, the judge said, because it consisted chiefly of statements by two other detainees — sometimes contradicting each other — whose believability was questioned by the government itself.
Court Documents:

Anwar Hassan

Nationality:Chinese (Uighur)
Circumstances of Capture:Captured December 2001 in Pakistan by Pakistani civilians, handed over to Pakistani authorities, then transferred to U.S. military for $5,000.
Summary of Allegations:The government alleged that he was affiliated with a Uighur (Chinese ethnic minority) independence group know as the East Turkistan Islamic Movement, from which he received weapons training. ETIM was alleged to be associated with al-Qaeda and the Taliban and engaged in hostilities against the U.S. and allies.
Status:Determined by government to be eligible for release June 2003. Federal trial judge ordered Hassan released Oct. 8, 2008, but the government appealed, and the release order was blocked by the D.C. federal appeals court. He was transferred to Palau on Oct. 31, 2009. In October, the Supreme Court agreed to hear the Uighurs’ appeal of their case.
Reason for Court’s Decision:The D.C. federal appeals court decided on June 20, 2008, that the government had failed to present enough reliable evidence to prove key allegations — that ETIM was linked to al-Qaeda and the Taliban, and that ETIM was hostile to the U.S.”
Court Documents:

Mustafa Ait Idir

Nationality:Algerian
Circumstances of Capture:Arrested by Bosnian authorities in October 2001 on suspicion of plotting to bomb the U.S. embassy in Sarajevo. Cleared for release January 2002, but transported to Guantanamo at request of US military.
Summary of Allegations:The government mainly alleged that he’d planned to travel to Afghanistan in late 2001 to fight the U.S. and allied forces.Also that he associated with al-Qaeda and other suspected terrorists and that he’d worked for a Qaeda-affiliated organization that provided material support to terrorists.
Status:Judge ordered release Nov. 20, 2008. Ait Idir was transferred to Bosnia and Herzegovina Dec. 16, 2008.
Reason for Court’s Decision:Judge decided the government failed to prove its allegations by a preponderance (majority) of the evidence. “[T]he Government relies exclusively on the information contained in a classified document from an unnamed source,” wrote the judge. This single piece of evidence “is not sufficient” to prove the legality of detention, he said.
Court Documents:

Jalal Jalaldin (aka Abdullah Abdulqadir)

Nationality:Chinese (Uighur)
Circumstances of Capture:Captured December 2001 in Pakistan by Pakistani civilians, handed over to Pakistani authorities, then transferred to U.S. military for $5,000.
Summary of Allegations:The government alleged that he was affiliated with a Uighur (Chinese ethnic minority) independence group know as the East Turkistan Islamic Movement, from which he received weapons training. ETIM was alleged to be associated with al-Qaeda and the Taliban and engaged in hostilities against the U.S. and allies.
Status:Determined by government to be eligible for release August 2003. Federal trial judge ordered Parhat released Oct. 8, 2008. The government appealed, and judge’s release order was blocked by the D.C. federal appeals court. Jalaldin nevertheless was transferred to Bermuda, June 11, 2009. In October, the Supreme Court agreed to hear the Uighurs’ appeal of their case.
Reason for Court’s Decision:The D.C. federal appeals court decided on June 20, 2008, that the government had failed to present enough reliable evidence to prove key allegations — that ETIM was linked to al-Qaeda and the Taliban, and that ETIM was hostile to the U.S.”
Court Documents:

Mohammed Jawad

Nationality:Afghan
Circumstances of Capture:Arrested by local officials in Afghanistan in December 2002.
Summary of Allegations:The government alleged that on Dec. 17, 2002, Jawad tossed a grenade in Afghanistan that seriously injured two U.S. soldiers and their local interpreter.
Status:On July 30, 2009, judge ordered that “beginning on August 21″ the government “shall promptly release petitioner Jawad.” He was transferred to Afghanistan on Aug. 24, 2009.
Reason for Court’s Decision:Technically the judge ordered Jawad released because the government said it would no longer detain him as a wartime enemy. But the government’s decision followed a scathing reprimand from the judge for continuing to detain Jawad and prosecute him in a military commission based mostly on a confession obtained by Afghan officials under death threats.
Court Documents:

Saber Lahmar

Nationality:Algerian
Circumstances of Capture:Arrested by Bosnian authorities in October 2001 on suspicion of plotting to bomb the U.S. embassy in Sarajevo. Cleared for release January 2002, but transported to Guantanamo at request of US military.
Summary of Allegations:The government mainly alleged that he’d planned to travel to Afghanistan in late 2001 to fight the U.S. and allied forces.Also that he associated with al-Qaeda and other suspected terrorists and that he’d worked for a Qaeda-affiliated organization that provided material support to terrorists.
Status:Judge ordered release Nov. 20, 2008. Lahmar was transferred to France on Nov. 30, 2009.
Reason for Court’s Decision:Judge decided the government failed to prove its allegations by a preponderance (majority) of the evidence. “[T]he Government relies exclusively on the information contained in a classified document from an unnamed source,” wrote the judge. This single piece of evidence “is not sufficient” to prove the legality of detention, he said.
Court Documents:

Edham Mamet

Nationality:Chinese (Uighur)
Circumstances of Capture:Captured in Afghanistan in November 2001.
Summary of Allegations:The government alleged that he was affiliated with a Uighur (Chinese ethnic minority) independence group know as the East Turkistan Islamic Movement, from which he received weapons training. ETIM was alleged to be associated with al-Qaeda and the Taliban and engaged in hostilities against the U.S. and allies.
Status:Determined by government to be eligible for release August 2003. Federal trial judge ordered Mamet released Oct. 8, 2008, but the government appealed, and the release order was blocked by the D.C. federal appeals court. He was transferred to Palau on Oct. 31, 2009. In October, the Supreme Court agreed to hear the Uighurs’ appeal of their case.
Reason for Court’s Decision:The D.C. federal appeals court decided on June 20, 2008, that the government had failed to present enough reliable evidence to prove key allegations — that ETIM was linked to al-Qaeda and the Taliban, and that ETIM was hostile to the U.S.”
Court Documents:

Abdul Nasser (aka Khaleel Mamut)

Nationality:Chinese (Uighur)
Circumstances of Capture:Captured December 2001 in Pakistan by Pakistani civilians, handed over to Pakistani authorities, then transferred to U.S. military for $5,000.
Summary of Allegations:The government alleged that he was affiliated with a Uighur (Chinese ethnic minority) independence group know as the East Turkistan Islamic Movement, from which he received weapons training. ETIM was alleged to be associated with al-Qaeda and the Taliban and engaged in hostilities against the U.S. and allies.
Status:Determined by government to be eligible for transfer November 2005. Federal trial judge ordered Nassar released Oct. 8, 2008, but the government appealed, and the release order was blocked by the D.C. federal appeals court. Nasser nevertheless was transferred to Bermuda on June 11, 2009. In October, the Supreme Court agreed to hear the Uighurs’ appeal of their case.
Reason for Court’s Decision:The D.C. federal appeals court decided on June 20, 2008, that the government had failed to present enough reliable evidence to prove key allegations — that ETIM was linked to al-Qaeda and the Taliban, and that ETIM was hostile to the U.S.”
Court Documents:

Mohamed Nechla

Nationality:Algerian
Circumstances of Capture:Arrested by Bosnian authorities in October 2001 on suspicion of plotting to bomb the U.S. embassy in Sarajevo. Cleared for release January 2002, but transported to Guantanamo at request of US military.
Summary of Allegations:The government mainly alleged that he’d planned to travel to Afghanistan in late 2001 to fight the U.S. and allied forces.Also that he associated with al-Qaeda and other suspected terrorists and that he’d worked for a Qaeda-affiliated organization that provided material support to terrorists.
Status:Judge ordered release Nov. 20, 2008. Nechla was transferred to Bosnia and Herzegovina Dec. 16, 2008.
Reason for Court’s Decision:Judge decided the government failed to prove its allegations by a preponderance (majority) of the evidence. “[T]he Government relies exclusively on the information contained in a classified document from an unnamed source,” wrote the judge. This single piece of evidence “is not sufficient” to prove the legality of detention, he said.
Court Documents:

Adel Noori

Nationality:Chinese (Uighur)
Circumstances of Capture:Captured December 2001 in Pakistan by Pakistani civilians, handed over to Pakistani authorities, then transferred to U.S. military for $5,000.
Summary of Allegations:The government alleged that he was affiliated with a Uighur (Chinese ethnic minority) independence group know as the East Turkistan Islamic Movement, from which he received weapons training. ETIM was alleged to be associated with al-Qaeda and the Taliban and engaged in hostilities against the U.S. and allies.
Status:Determined by government to be eligible for transfer October 2005. Federal trial judge ordered Noori released Oct. 8, 2008, but the government appealed, and the release order was blocked by the D.C. federal appeals court. He was transferred to Palau on Oct. 31, 2009. In October, the Supreme Court agreed to hear the Uighurs’ appeal of their case.
Reason for Court’s Decision:The D.C. federal appeals court decided on June 20, 2008, that the government had failed to present enough reliable evidence to prove key allegations — that ETIM was linked to al-Qaeda and the Taliban, and that ETIM was hostile to the U.S. — and that Parhat could not be held as an enemy combatant on “bare assertions.”
Court Documents:

Huzaifa Parhat

Nationality:Chinese (Uighur)
Circumstances of Capture:Captured December 2001 in Pakistan by Pakistani civilians, handed over to Pakistani authorities, then transferred to U.S. military for $5,000.
Summary of Allegations:The government alleged that he was affiliated with a Uighur (Chinese ethnic minority) independence group know as the East Turkistan Islamic Movement, from which he received weapons training. ETIM was alleged to be associated with al-Qaeda and the Taliban and engaged in hostilities against the U.S. and allies.
Status:Determined by government to be eligible for release August 2003. Federal trial judge ordered Parhat released Oct. 8, 2008. The government appealed, and judge’s release order was blocked by the D.C. federal appeals court. Parhat nevertheless was transferred to Bermuda, June 11, 2009. In October, the Supreme Court agreed to hear the Uighurs’ appeal of their case.
Reason for Court’s Decision:The D.C. federal appeals court decided on June 20, 2008, that the government had failed to present enough reliable evidence to prove key allegations — that ETIM was linked to al-Qaeda and the Taliban, and that ETIM was hostile to the U.S. – and that Parhat could not be held as an enemy combatant on “bare assertions.”
Court Documents:

Abdul Semet (aka Salahadin Abdulahat)

Ahmad Tourson

Nationality:Chinese (Uighur)
Circumstances of Capture:Captured in Afghanistan in November 2001.
Summary of Allegations:The government alleged that he was affiliated with a Uighur (Chinese ethnic minority) independence group know as the East Turkistan Islamic Movement, from which he received weapons training. ETIM was alleged to be associated with al-Qaeda and the Taliban and engaged in hostilities against the U.S. and allies.
Status:Determined by government to be eligible for release December 2005. Federal trial judge ordered Tourson released Oct. 8, 2008, but the government appealed, and the release order was blocked by the D.C. federal appeals court. He was transferred to Palau on Oct. 31, 2009. In October, the Supreme Court agreed to hear the Uighurs’ appeal of their case.
Reason for Court’s Decision:The D.C. federal appeals court decided on June 20, 2008, that the government had failed to present enough reliable evidence to prove key allegations — that ETIM was linked to al-Qaeda and the Taliban, and that ETIM was hostile to the U.S.”
Court Documents:

Still in Custody

Mohammed Al Adahi

Nationality:Yemeni
Circumstances of Capture:Captured by Pakistani authorities near the Afghanistan border in December 2001.
Summary of Allegations:The government alleged that Adahi once helped tend to wounded Taliban soldiers during a bus trip; was present in Kabul during the U.S. air campaign there; and was in possession of the model of a watch that has been used in bombings linked to al-Qaeda.
Status:Judge ordered release Aug. 17, 2009. He remains at Guantanamo.
Reason for Court’s Decision:Judge ordered release Aug. 17, 2009. He remains at Guantanamo. The judge found “no reliable evidence” that Adahi supported, trained or fought for, or was a member of al-Qaeda, and that while Adahi acknowledged meeting Osama Bin Laden, that did not justify his detention.
Court Documents:

Khalid Ali (aka Saidullah Khalik)

Nationality:Chinese (Uighur)
Circumstances of Capture:Captured in December 2001 by Pakistani civilians, handed over to Pakistani authorities, transferred to US military for $5,000.
Summary of Allegations:The government alleged that he was affiliated with a Uighur (Chinese ethnic minority) independence group know as the East Turkistan Islamic Movement, from which he received weapons training. ETIM was alleged to be associated with al-Qaeda and the Taliban and engaged in hostilities against the U.S. and allies.
Status:Determined by government to be eligible for release August 2003. Federal trial judge ordered Ali released Oct. 8, 2008, but the government appealed, and the release order was blocked by the D.C. federal appeals court. Ali has asked the U.S. Supreme Court to reverse the appeals court’s decision. He remains at Guantanamo. In October, the Supreme Court agreed to hear the Uighurs’ appeal of their case.
Reason for Court’s Decision:The D.C. federal appeals court decided on June 20, 2008, that the government had failed to present enough reliable evidence to prove key allegations — that ETIM was linked to al-Qaeda and the Taliban, and that ETIM was hostile to the U.S. — and that Khalid could not be held as an enemy combatant on “bare assertions.”
Court Documents:

Yasin Muhammed Basardh

Nationality:Yemeni
Circumstances of Capture:Captured near the Afghanistan/Pakistan border in early 2002.
Summary of Allegations:The government alleged that Basardh trained at a Qaeda military camp and fought for the Taliban, hiding with Osama bin Laden in the mountains of Tora Bora in late 2001.
Status:Judge found Basardh eligible for release April 15, 2009. He remains at Guantanamo, while the government appeals the decision.
Reason for Court’s Decision:Judge found Basardh eligible for release. However, he remains at Guantanamo, while the government appeals the decision. The judge said the admitted Taliban fighter could no longer be properly detained, because news reports showed that Basardh gave U.S. authorities information about numerous other suspected terrorists. “[A]ny ties with the enemy have been severed, and any realistic risk that he could rejoin the enemy has been foreclosed,” the judge wrote.
Court Documents:

Trial Court Decision

Farhi Saeed bin Mohammed

Nationality:Algerian
Circumstances of Capture:Captured by Pakistani authorities in late 2001 while attempting to cross the border from Afghanistan to Pakistan.
Summary of Allegations:The government alleged that Mohammed received weapons training in Afghanistan, and that he saw Osama bin Laden at a funeral in Kabul shortly after 9/11.
Status:Judge ordered release Nov. 19, 2009. Mohammed remains at Guantanamo.
Reason for Court’s Decision:The court has not yet released a declassified version of the judge’s opinion.

Saeed Hatim

Nationality:Yemeni
Circumstances of Capture:Captured in December 2001 by Pakistani civilians, handed over to Pakistani authorities, transferred to US military for $5,000.
Summary of Allegations:He went to Afghanistan in 2001, where he attended the al-Farouq training camp and joined Arab soldiers near Kabul.
Status:A judge granted his petition for a writ of habeas corpus on Dec. 16, 2009. He remains at Guantanamo.

Arkin Mahmud

Nationality:Chinese (Uighur)
Circumstances of Capture:Captured in Afghanistan in November 2001
Summary of Allegations:The government alleged that he was affiliated with a Uighur (Chinese ethnic minority) independence group know as the East Turkistan Islamic Movement, from which he received weapons training. ETIM was alleged to be associated with al-Qaeda and the Taliban and engaged in hostilities against the U.S. and allies.
Reason for Court’s Decision:Determined by government to be eligible for transfer January 2006. Federal trial judge ordered Mahmud released Oct. 8, 2008, but the government appealed, and the release order was blocked by the D.C. federal appeals court. Mahmud has asked the U.S. Supreme Court to reverse the appeals court’s decision. He remains at Guantanamo. In October, the Supreme Court agreed to hear the Uighurs? appeal of their case.
Court Documents:

Bahtiyar Mahnut

Nationality:Chinese (Uighur)
Circumstances of Capture:Captured in December 2001 by Pakistani civilians, handed over to Pakistani authorities, transferred to US military for $5,000.
Summary of Allegations:The government alleged that he was affiliated with a Uighur (Chinese ethnic minority) independence group know as the East Turkistan Islamic Movement, from which he received weapons training. ETIM was alleged to be associated with al-Qaeda and the Taliban and engaged in hostilities against the U.S. and allies.
Status:Determined by government to be eligible for transfer December 2005. Federal trial judge ordered Mahnut released Oct. 8, 2008, but the government appealed, and the release order was blocked by the D.C. federal appeals court. Mahnut has asked the U.S. Supreme Court to reverse the appeals court’s decision. He remains at Guantanamo. In October, the Supreme Court agreed to hear the Uighurs’ appeal of their case.
Reason for Court’s Decision:The D.C. federal appeals court decided on June 20, 2008, that the government had failed to present enough reliable evidence to prove key allegations — that ETIM was linked to al-Qaeda and the Taliban, and that ETIM was hostile to the U.S.”
Court Documents:

Hammad Memet (aka Ahmed Mohamed)

Nationality:Chinese (Uighur)
Circumstances of Capture:Captured in December 2001 by Pakistani civilians, handed over to Pakistani authorities, transferred to US military for $5,000.
Summary of Allegations:The government alleged that he was affiliated with a Uighur (Chinese ethnic minority) independence group know as the East Turkistan Islamic Movement, from which he received weapons training. ETIM was alleged to be associated with al-Qaeda and the Taliban and engaged in hostilities against the U.S. and allies.
Status:Determined by government to be eligible for transfer May 2008. Federal trial judge ordered Memet released Oct. 8, 2008, but the government appealed, and the release order was blocked by the D.C. federal appeals court. Memet has asked the U.S. Supreme Court to reverse the appeals court’s decision. He remains at Guantanamo. In October, the Supreme Court agreed to hear the Uighurs’ appeal of their case.
Court Documents:

Sabir Osman (aka Hajiakbar Abdulghupur)

Nationality:Chinese (Uighur)
Circumstances of Capture:Captured in December 2001 by Pakistani civilians, handed over to Pakistani authorities, transferred to US military for $5,000.
Summary of Allegations:The government alleged that he was affiliated with a Uighur (Chinese ethnic minority) independence group know as the East Turkistan Islamic Movement, from which he received weapons training. ETIM was alleged to be associated with al-Qaeda and the Taliban and engaged in hostilities against the U.S. and allies.
Status:Determined by government to be eligible for release August 2003. Federal trial judge ordered Osman released Oct. 8, 2008, but the government appealed, and the release order was blocked by the D.C. federal appeals court. Osman has asked the U.S. Supreme Court to reverse the appeals court’s decision. He remains at Guantanamo. In October, the Supreme Court agreed to hear the Uighurs’ appeal of their case.
Reason for Court’s Decision:The D.C. federal appeals court decided on June 20, 2008, that the government had failed to present enough reliable evidence to prove key allegations — that ETIM was linked to al-Qaeda and the Taliban, and that ETIM was hostile to the U.S.”
Court Documents:

Abdul Razakah

Nationality:Chinese (Uighur)
Circumstances of Capture:Captured in December 2001 by Pakistani civilians, handed over to Pakistani authorities, transferred to US military for $5,000.
Summary of Allegations:The government alleged that he was affiliated with a Uighur (Chinese ethnic minority) independence group know as the East Turkistan Islamic Movement, from which he received weapons training. ETIM was alleged to be associated with al-Qaeda and the Taliban and engaged in hostilities against the U.S. and allies.
Status:Determined by government to be eligible for transfer December 2005. Federal trial judge ordered Razakah released Oct. 8, 2008, but the government appealed, and the release order was blocked by the D.C. federal appeals court. Razakah has asked the U.S. Supreme Court to reverse the appeals court’s decision. He remains at Guantanamo. In October, the Supreme Court agreed to hear the Uighurs’ appeal of their case.
Reason for Court’s Decision:The D.C. federal appeals court decided on June 20, 2008, that the government had failed to present enough reliable evidence to prove key allegations — that ETIM was linked to al-Qaeda and the Taliban, and that ETIM was hostile to the U.S.”
Court Documents:

Abdul Sabour (aka Yusef Abbas)

Nationality:Chinese (Uighur)
Circumstances of Capture:Captured in December 2001 by Pakistani civilians, handed over to Pakistani authorities, transferred to US military for $5,000.
Summary of Allegations:The government alleged that he was affiliated with a Uighur (Chinese ethnic minority) independence group know as the East Turkistan Islamic Movement, from which he received weapons training. ETIM was alleged to be associated with al-Qaeda and the Taliban and engaged in hostilities against the U.S. and allies.
Status:Ordered released, remains at Gitmo.
Reason for Court’s Decision:Determined by government to be eligible for transfer November 2003. Federal trial judge ordered Sabour released Oct. 8, 2008, but the government appealed, and the release order was blocked by the D.C. federal appeals court. Sabour has asked the U.S. Supreme Court to reverse the appeals court’s decision. He remains at Guantanamo. In October, the Supreme Court agreed to hear the Uighurs? appeal of their case.
Court Documents:

Gitmo Habeas Scoreboard

TWI — Wed, 16 Dec 2009 20:08:41 +0000

Detainees	U.S. Government
32	11

Click on the numbers in the scoreboard above for a detailed breakdown of the cases.

Since the Supreme Court ruled last year that detainees at the U.S. prison camp at Guantanamo have the right to habeas corpus — that is, the right to challenge their detention in court — hundreds of detainees have taken advantage, filing petitions in the U.S. District Court in Washington, D.C.

The Gitmo Habeas Scoreboard is broken up into two sections: cases won by detainees — further divided between detainees who have been released and those still in custody — and cases won by the U.S. government. Using information compiled by Pro Publica and David Remes, legal director of Appeal for Justice, the accompanying charts feature background information on all 41 detainees whose cases have been decided to date, including the allegations against each detainee, the court’s reasoning in each decision, and the status of any appeals. As more cases are resolved, we’ll keep updating the chart.

Of the 41 cases heard so far, detainees have won 32 of them. That means that in 32 out of 41 cases, the government was unable to present enough evidence, including classified evidence, to convince a federal court judge that it’s more likely than not that the detainee was a member or substantial supporter of al-Qaeda or the Taliban. (Habeas cases are civil proceedings, where there is no need to establish guilt “beyond a reasonable doubt,” as in criminal trials.)

Of the 32 cases the government has lost, it has appealed only two. Eight detainees who have lost their cases have appealed so far.

Meanwhile, many of the prisoners who have won their petitions for habeas corpus are still imprisoned at Gitmo. Although the court in each case ordered the government to arrange for the detainee’s expeditious release, in some cases the government can’t or won’t send the prisoner back to where he came from. In some cases, that’s either because the detainee legitimately fears persecution at home, as in the case of the Uighurs. In others, it’s because, as with the prisoners from Yemen, the U.S. government doesn’t trust the detainee’s home government to keep him from joining up with local terror groups upon his return.

As a result, of the 32 detainees who have won an order of release in a U.S. federal court, 11 remain in prison.

Thanks to Hannah Dreier and Lazar Backovic for their work in compiling this scoreboard.

Supreme Court Shuts Door on Gitmo Torture Case

Daphne Eviatar — Tue, 15 Dec 2009 11:00:14 +0000

Detainees at Guantanamo Bay (The Toronto Star/ZUMApress.com)

The Supreme Court dealt a harsh blow on Monday to victims of abuse by U.S. officials during the “war on terror.” The court announced it would not review a federal appeals court ruling that dismissed a lawsuit by four British citizens who claim they were wrongly arrested, detained and mistreated by American officials at the U.S. detention facility at Guantanamo Bay, Cuba. The U.S. Circuit Court of Appeals in Washington, D.C., had ruled in April that government officials were entitled to “qualified immunity” from suit because it wasn’t clear at the time that abusing Guantanamo prisoners at was illegal.

[Law1] That appeals court decision in Rasul v. Rumsfeld effectively doomed many more cases that might have been brought by the more than 500 detainees who’ve been released from the Guantanamo prison, many of whom were subjected to so-called “enhanced interrogation techniques.” Those techniques include a broad range of abusive tactics, from weeks of sleep and food deprivation to stress positions, sexual humiliation, death threats and “waterboarding,” or simulated drowning. The four men who sued former Defense Secretary Donald Rumsfeld and other senior military officers for approving those techniques claim that between 2001 and 2004, when they were released, they were subjected to repeated beatings, prolonged sleep deprivation, extremes of hot and cold, forced nakedness, death threats, interrogations at gun point, menacing with unmuzzled dogs, and religious and racial harassment. The use of such techniques has been documented in Congressional reports, and Justice Department memos reveal that such tactics were explicitly approved by Bush administration lawyers.

The court’s decision not to review the Rasul case does not mean it agrees with the lower court’s decision. But it leaves the court of appeals’ ruling in effect and places a stumbling block in the path of Guantanamo detainees who claim they have been abused in U.S. custody and seek redress in court.

“When the court decides not to hear a case, it doesn’t say anything about the merits,” said Stephen Vladeck, professor at American University’s Washington College of Law and expert on national security and constitutional law. “But it leaves intact a fairly sweeping opinion by the D.C. Circuit — one that I think will be hard to overcome for any future plaintiffs suing based on abuse that allegedly occurred at Guantanamo.”

Shayana Kadidal, a senior attorney at the Center for Constitutional Rights and one of the lawyers who brought the Rasul case, agreed. “This decision is certainly bad news for the majority of people who could conceivably want to sue for damages at some point,” he said. In addition to monetary compensation, he said, many former Guantanamo detainees are seeking rulings to clears their names, because when they return to their home countries they’re often still suspected of terrorism and unable to secure employment.

At issue is an aspect of the D.C. Circuit’s opinion that found that government officials cannot be held legally responsible for any mistreatment because when the plaintiffs sued in 2004, “it wasn’t clearly established in the law that they were entitled not to be tortured or subjected to religious abuse,” said Kadidal. Since then, several Supreme Court cases have ruled that Guantanamo detainees have at least some constitutional rights. Which ones, however, remain unclear.

The D.C. Circuit’s ruling “reads out the good faith requirement in qualified immunity,” said Eric Lewis, a Washington, D.C., attorney who brought the Rasul case with CCR. “The whole notion of qualified immunity is that officials acting in good faith should have some protections.” But the law has long been clear that torture is not legal, said Lewis, citing the Convention Against Torture, among other laws. The Rasul decision, and the Supreme Court’s refusal to review it, he said, “makes it hard to know, what’s the law for next time?”

In fact, the D.C. Circuit’s latest Rasul opinion (the appeals court has ruled twice in this case) suggests in non-binding language that Guantanamo detainees have no constitutional rights other than the right of habeas corpus (the right to challenge the lawfulness of government detention), which the Supreme Court had already ruled applied to Guantanamo detainees. That finding cleared the way for the Obama administration, like the Bush administration before it, to argue that there is no constitutional right not to be tortured or otherwise abused in a U.S. prison abroad.

The high court today refused to weigh in on that issue. “I was hoping that the Supreme Court wouldn’t allow the last word on torture at Guantanamo to be that [detainees] have no rights and if they do, nobody knew at the time,” said Lewis. “That’s very disappointing.”

The D.C. Circuit opinion is not binding on courts in other parts of the country, however, which still could rule differently on some of these issues. A federal court in San Francisco, for example, ruled in June that Jose Padilla, an American citizen imprisoned as an “enemy combatant” without charge at a U.S. Naval brig in South Carolina, can sue former Justice Department lawyer John Yoo , whose legal opinions during the Bush administration approved the harsh and abusive treatment Padilla received. The court in that case denied Yoo’s claim to qualified immunity. That case is now on appeal in the Ninth Circuit.

Qualified immunity is hardly the only obstacle to holding government officials liable for torture and other abuse, however. Other cases, brought on behalf of former prisoners who were deemed “enemy combatants,” are barred by the Detainee Treatment Act of 2005, in which Congress stripped the courts of jurisdiction over any lawsuits complaining about the treatment of enemy combatants. (At least one case, Al-Zahrani v. Rumsfeld, is now challenging the constitutionality of that law.)

Then there’s the lawsuit brought by Canadian citizen Maher Arar, arrested while changing planes in New York and sent to Syria by U.S. officials, where he claims he was interrogated under torture. That case was recently dismissed by the Second Circuit Court of Appeals in New York on the grounds that “special factors” — such as potential implications for national security and foreign relations — counseled against allowing the case to proceed. (Arar could still seek review in the Supreme Court.)

Other cases have been dismissed on similar grounds. “The more structural, fundamental problem is where the cause of action comes from,” said Vladeck , referring to the basis for a victim’s right to sue. Although in some cases federal courts will imply a right to sue government officials for a constitutional violation, “the Supreme Court over the last 20 years has been incredibly hostile to damages suits against federal officers,” said Vladeck.

In its latest move, the Supreme Court’s refusal to consider whether government officials can reasonably claim they didn’t know it was unlawful to torture prisoners in U.S. custody reinforces the viability of that argument for the future.

The court’s inaction also effectively ends the four British plaintiffs’ quest for a remedy — and likely stymies similar actions from many more former Guantanamo prisoners who hoped for official acknowledgment or compensation for what they endured. “Nothing legally would stop the executive branch or Congress from conceding that mistakes were made and these guys are entitled to some kind of reparations,” said Vladeck. “But I cannot imagine that’s going to be very politically feasible.”

Won’t You Help Jay Bybee Against Those Who Want to Hold Him Accountable for Torture?

Spencer Ackerman — Thu, 19 Nov 2009 14:27:38 +0000

Michael Isikoff reports:

The federal judge who helped draft Justice Department memos on torture has set up a legal defense fund to pay the costs of defending against possible disciplinary or impeachment proceedings. Jay Bybee, a U.S. Court of Appeals judge in Las Vegas, quietly set up the fund last July following widespread news reports that he and a former deputy, John Yoo, were the focus of a long-running investigation by the Justice Department’s internal ethics unit, the Office of Professional Responsibility (OPR), over their role in crafting the memos.

Attorney General Holder said yesterday he expected the Justice Department would finally release a version of the OPR report by the end of the month. Judge Bybee is evidently prepared for the rather nettlesome case of his former employer considering him unfit to practice law: Isikoff reports that he’s got Liz Cheney’s advocacy group, Keep America Safe, on his side.

One interesting question arises. Bybee’s former deputy John Yoo helped him craft the torture memos in 2002. Yoo faces similar criticism and legal difficulty, and is reportedly implicated in the OPR report alongside his old boss. But Yoo’s personal legal expenses are, risably, covered by the American taxpayer. Will Bybee similarly stick us with the bill?

Keene, Norquist and Barr Back Obama on Gitmo

David Weigel — Mon, 16 Nov 2009 15:12:00 +0000

David Keene of the American Conservative Union, Grover Norquist of Americans for Tax Reform, and former congressman/Libertarian presidential candidate Bob Barr are backing a proposal to send Guantanamo Bay detainees to a prison in Illinois, as well as President Obama’s plan to try terrorism suspects in federal courts. The three conservatives have long been members of the Constitution Project, and spoke out against Bush-era civil liberties abuses, too, but this push is getting a lot more attention.

From a statement issued by the trio:

We are confident that the government can preserve national security without resorting to sweeping and radical departures from an American constitutional tradition that has served us effectively for over two centuries.

Civilian federal courts are the proper forum for terrorism cases. Civilian prisons are the safe, cost effective and appropriate venue to hold persons convicted in federal courts. Over the last two decades, federal courts constituted under Article III of the U.S. Constitution have proven capable of trying a wide array of terrorism cases, without sacrificing either national security or fair trial standards.

Likewise the federal prison system has proven itself fully capable of safely holding literally hundreds of convicted terrorists with no threat or danger to the surrounding community.

The scaremongering about these issues should stop.

Barr has a unique position in the conservative coalition–he left the GOP to run for president as a Libertarian candidate, but his campaign is not seen to have spoiled anything for the McCain-Palin ticket. Keene and Norquist remain conservative powerhouses, and the former played key role in making Doug Hoffman’s NY-23 campaign into a national cause.

Italy Convicts 23 Americans in Rendition Case

Matthew DeLong — Wed, 04 Nov 2009 16:40:57 +0000

Breaking news from Reuters:

An Italian judge sentenced 23 former CIA agents to up to eight years in prison on Wednesday for the abduction of a Muslim cleric in a landmark ruling against the “rendition” flights used by the former U.S. government.

The Americans were tried in More...

Obama Legacy: A Parallel Justice System?

Daphne Eviatar — Thu, 29 Oct 2009 10:00:50 +0000

President Barack Obama (WDCpix)

In signing the Defense Authorization Act, which, among other things, amends the laws governing military commissions, President Obama confirmed Wednesday that he plans to keep the controversial military commissions alive. The effect is to deny at least some suspected terrorists — now called “unprivileged enemy belligerents” — the right to a trial in a civilian federal court. And though Obama has promised to use the commissions sparingly, the new law sets up a parallel justice system that could outlive the Obama administration and leave an indelible stamp on its legacy.

So how different are the new military commissions from the old ones?

[Law1]Even those who fiercely oppose trying suspected terrorists in military commissions acknowledge that the months of wrangling over the legislation in Congress led to significant improvements over the Bush-era military commissions approved in the Military Commissions Act of 2006. Still, there are many lingering concerns. The new commissions allow the admission of coerced evidence in certain narrow circumstances. They allow the government to try children as war criminals. And, the new law would allow trials by military commission for offenses that are not traditionally considered war crimes. Those provisions leave even the new-and-improved military commissions vulnerable to constitutional challenge, and their verdicts open to reversal on appeal. And that could undermine the entire purpose of creating military commissions, which is ordinarily to provide swift justice when ordinary courts are not available.

Many legal experts and human rights advocates say the improvements over the 2006 Military Commissions Act are significant.

Under the amendments, an “unprivileged enemy belligerent” — what the Bush administration used to call an “enemy combatant” — is entitled to competent, experienced defense counsel, particularly if the suspect might face the death penalty. The previous commissions did not provide for defense lawyers with significant experience handling capital cases.

The new commissions also require that most statements of the accused must have been “voluntary” to be admitted at trial. That’s in addition to the requirement that the statements were not solicited by torture, or by cruel, inhuman or degrading treatment, as defined by the Detainee Treatment Act. Of course, the Detainee Treatment Act was interpreted by the Bush administration’s lawyer very liberally, so even extreme sleep and food deprivation, stress positions, threatening dogs and confinement with an insect in a small box was deemed lawful under that standard. But adding that the statement must also be “voluntary” — a change pressed by the Obama administration at several Congressional hearings — raises the bar significantly higher.

On the other hand, there is an exception. Statements are admissible even if not “voluntary” if “the statement was made incident to lawful conduct during military operations at the point of capture or during closely related active combat engagement, and the interests of justice would best be served by admission of the statement into evidence.” It remains to be seen how narrowly a judge will construe that.

The admission of hearsay evidence has been narrowed as well. The new law requires whoever introduces the evidence to give the other side enough advance warning to see the evidence and prepare a response, and the judge, in weighing the evidence, must “take into account all of the circumstances surrounding the taking of the statement, including the degree to which the statement is corroborated, the indicia of reliability within the statement itself, and whether the will of the declarant was overborne…” Then, in addition, the judge has to find that the statement is relevant and probative of a fact of the case, that it’s impractical to get direct testimony from the witness, and that “the general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence.” That essentially mirrors the hearsay exception for evidence provided in a civilian federal court.

As for the admission of classified evidence, the military commission has to follow the same procedures a civilian federal court would to determine how and if the evidence can be used, and to what extent and in what form the accused and his lawyer are entitled to see it.

But if the procedural safeguards are so similar to those in federal court, then why have the military commissions at all? The question is even more important because Congress, in passing this law, defined the court’s jurisdiction to include crimes that are not traditionally war crimes, such as conspiracy, and suspects who are not traditionally considered war criminals, such as those who provide “material support” for terrorism. Even Assistant Attorney General David Kris, testifying before Congress, testified that it’s not clear that those crimes — which are commonly charged against terror suspects in civilian federal courts — can constitutionally be brought before a military commission. Justice Stevens, in the case of Hamdan v. Rumsfeld, in an opinion joined by three other justices, specifically notes that “conspiracy” has not traditionally been considered a war crime. (The court did not ultimately rule on that basis, so it’s not clear how a majority would rule on it now.) Therefore, defense lawyers could argue that for Congress to make it a war crime after the suspect’s crime was committed would be an unconstitutional “ex post facto” law, says Shayana Kadidal, senior managing attorney of the Guantanamo Global Justice Initiative at the Center for Constitutional Rights.

For the administration to bring a terrorism case before a military commission and be sure to avoid this issue, then, it would have to avoid charging conspiracy and substantial support for terrorism. Those charges are made in almost all terrorism cases.

Which raises the question, why bring cases in military commissions at all?

Justice John Paul Stevens in Hamdan argued that the purpose of military commissions is “military necessity.” Yet in this situation, as many legal experts have pointed out, it’s not at all clear that these commissions are necessary.

As the ACLU’s Jameel Jaffer said in a statement released yesterday after the President signed the new law: “The commissions remain not only illegal but unnecessary – the federal courts have proven themselves capable of handling complex terrorism cases while protecting both the government’s national security interests and the defendants’ rights to a fair trial.”

Many other lawyers and advocates agree. A study conducted by former prosecutors for Human Rights First, for example, found that civilian federal courts had successfully prosecuted more than 214 terrorism cases since September 11, 2001. Prosecutors won 195 convictions, and successfully handled the challenges of unavailable witnesses, classified evidence, undercover informants and other complexities that arise in terrorism cases, the report found. By contrast, the military commissions created by President Bush after the 9/11 attacks and subsequently authorized by Congress tried only three cases. In only one of those did the defendant even put on a defense. In that case, Salim Hamdan, Osama bin Laden’s driver, was sentenced to only five and a half years in prison, with credit for the more than five years he’d already served. He was released to his home country of Yemen in January.

Part of the reason the military commissions have been so ineffective is because they were vulnerable to constitutional challenge. But legal experts say that even the new commissions would be vulnerable. As ACLU attorney Chris Anders put it, “they’ve narrowed the gap, but they still fall far short of the due process guarantees in Article III courts, which will still make them vulnerable to reversals.”

“This is a brand-new system, for the third time,” said Kadidal, referring to the two earlier incarnations of the military commissions during the Bush administration. The first commission system was invalidated by the U.S. Supreme Court, and the second was suspended by the Obama administration.

“This lesser degree of process is not justice,” said Virginia Sloan, president of the bipartisan Constitution Project, in a statement released yesterday. “Furthermore, these modest improvements cannot save the irretrievably tainted military commissions.”

The Obama administration surely knows that these cases are vulnerable to challenge, particularly since Congress included provisions in them that Justice Department lawyers admitted were legally questionable. And it’s not clear that it wants to bring important cases in the military commissions, and risk having convictions of major terrorists reversed on appeal.

What’s more, there’s no “sunset provision” in the legislation, so the military commissions can exist indefinitely. That’s also contrary to what the administration itself asked for. David Kris, testifying before the Senate Armed Services Committee, noted that traditionally, “military commissions have been associated with a particular conflict of relatively short duration.” Buy contrast, the current conflict “could continue for a much longer time.”

The result is that the military commissions could outlast the Obama presidency, raising another potentially sticky point that the Obama administration might prefer to avoid. “By not having a sunset provision,” said Kadidal, “this system will be a permanent part of President Obama’s legacy.”

Center for Constitutional Rights Executive Director Vincent Warren yesterday made the point even more starkly: “These are now President Obama’s military commissions: he owns them and all of the problems that come with them, and their inevitable failure will scar his legacy and embolden our critics in the world. Military commissions are an unnecessary, jury-rigged creation, second-rate in comparison to our legal system. Obama is tinkering with the Constitution for no good reason.”