Monday, November 14, 2005

This Is What Secret Justice Looks Like

Only habeas corpus got Adel a chance to tell a federal judge what had happened. Only habeas corpus revealed that it wasn't just Adel who was innocent -- it was Abu Bakker and Ahmet and Ayoub and Zakerjain and Sadiq -- all Guantanamo "terrorists" whom the military has found innocent.

Habeas corpus is older than even our Constitution. It is the right to compel the executive to justify itself when it imprisons people. But the Senate voted to abolish it for Adel...

Not, in fact, that it did any good. Even after a military tribunal decided the man was innocent, he was simply returned to his cell. That was eight months ago, after four years of illegal imprisonment. The only thing habeas corpus gains him is that someone, somewhere, knows about what's been done to him.

Fortunately, our intrepid statesmen are on the job! Read what Lindsey Graham (R-NC) proposes to do about this intolerable state of affairs:

The Need for Habeas Reform As it Concerns Enemy Combatants

* The Supreme Court's Rasul (2004) decision held that federal courts have jurisdiction to hear habeas petitions from Guantanamo detainees.
* For the first time foreign terrorists
(they must be terrorists - some bounty hunter we paid thousands of dollars to said so! -ed.) in U.S. custody have begun claiming the rights and benefits of the U.S. Constitution, our laws, and treaties.
* The amendment clarifies the previous understanding of the habeas statute that aliens outside the United States do not have access to our federal courts.

We've seen this pattern before, haven't we? When our bad behavior is revealed - make sure that can't happen again. Needless to say, the measure passed quickly - after less than an hour's debate.
For freedom!


Blogger Management said...

Senator Graham Press Release
Contact: Wes Hickman (202) 224-5972 or Kevin Bishop (864) 250-1417
Date: 11/10/2005

Senate Passes Graham Detainee Plan

Amendment Sets Guidelines For the Detention of Enemy Combatants and Clarifies that Foreign Terrorists do not have Unlimited Access to US Courts
WASHINGTON -- Today, by a vote of 49-42, the United States Senate expressed support for an plan authored by Senator Lindsey Graham (R-South Carolina) that strengthens the review process of detainees held at Guantanamo Bay, Cuba (GTMO) while clarifying that non-citizen terrorists do not have unlimited access to U.S. courts.

After the vote Graham made the following statement.

“I firmly believe that 9/11 was an act of war and not a crime. The detainees at GTMO are not American citizens facing criminal trial, rather, they are terrorists who have taken up arms against the United States.

“There has never been a time in our military history where an enemy combatant or prisoner of war has been allowed access to federal court to bring lawsuits against the people they are fighting. Habeas corpus rights have never been given to an enemy combatant and the Senate today reaffirmed that principal.

“Today the Senate voted to allow detainees a one-time appeal of their status to a single federal court and, at the same time, stopped the legal abuse. Currently, over 160 cases have been filed by terrorists suing our own troops over every action taken. The due process rights of enemy combatants at Guantanamo Bay are stronger than Geneva requirements, and with the addition of federal court review, are a model for the world.

“It is not fair to our troops fighting in the War on Terror to be sued in every court in the land by our enemies based on every possible complaint. We have done nothing today but return to the basics of the law of armed conflict where we are dealing with enemy combatants not common criminals.”

Graham Amendment

Senator Lindsey Graham’s amendment strengthens the review process of detainees held at Guantanamo Bay, Cuba (GTMO) while clarifying that non-citizen terrorists do not have access to U.S. courts.

The Current Situation at GTMO

* The detention status of all detainees at GTMO is assessed by an administrative process called the Combatant Status Review Tribunal (CSRT).

* CSRT determines the status of a detainee and whether they should be detained at GTMO as an unlawful enemy combatant.

* The CSRT is composed of three military officers. One officer is a judge advocate (military lawyer) while the senior ranking officer serves as president of the tribunal. Each detainee is assigned a military officer as a personal representative. The officer assists the detainee in preparing for the tribunal hearing.

* In the tribunal, detainees have the right to testify before the tribunal, call witnesses and introduce evidence.

* Following a hearing of testimony and introduction of evidence, the tribunal goes into closed-door session to determine whether the detainee is properly being termed an enemy combatant. Any detainee determined not to be an enemy combatant is transferred to their home country or handled in a manner consistent with domestic and international obligations and U.S. foreign policy.

* Enemy Combatants detained at GTMO also go before the Administrative Review Board (ARB) for an annual review of their status. The ARB is a three person panel comprised of military officers who determine if the individual is still an enemy combatant, still holds intelligence value or still presents a threat to the United States.

What Reforms Are Proposed in the Amendment?

The Graham amendment proposes several changes. They include:

* CSRT may not consider information that was proven by preponderance of the evidence to have been obtained with undue coercion.

* The Designated Civilian Official, the final authority on the Administrative Review Board, must be confirmed by the Senate. (Currently, the Acting Deputy Secretary of Defense Gordon England)

* Under the Graham amendment the determination of the CSRT would be subject to review by the D.C. Circuit Court of Appeals. This in an historic and unprecedented change.

The amendment also contains a provision authorizing the Secretary of Defense to change the procedures as long as they give notice to Congress in advance of implementation.

The CSRT / ARB Process and the Geneva Conventions

* Article 5 of the Third Geneva Convention of 1949 requires a party to an international armed conflict to use a "competent tribunal" to determine the status of a person when there is doubt as to whether the person qualifies as a Prisoner of War.

* While, by definition, Article 5 does not apply to Al Qaida (because they do not qualify as POW’s and are not part of a state party), the United States established the CSRT and ARB to address the due process concerns expressed by the Supreme Court.

* The CSRT and ARB procedures, especially with the changes required in this amendment, more than satisfy the requirement for a “competent tribunal” provided for in the Geneva Convention.

The Need for Habeas Reform As it Concerns Enemy Combatants

* The Supreme Court’s Rasul (2004) decision held that federal courts have jurisdiction to hear habeas petitions from Guantanamo detainees.

* For the first time foreign terrorists in U.S. custody have begun claiming the rights and benefits of the U.S. Constitution, our laws, and treaties.

* Over 160 habeas petitions on behalf of approximately 300 detainees have been filed in federal court to date.

* An array of habeas challenges have been filed including those questioning the quality of their food and speed of mail delivery. Others have questioned the legality of their detention, propriety of returning a detainee to their home country, and allotment of exercise time. The Department of Justice is devoting tremendous resources to the litigation of habeas petitions filed by GTMO detainees.

* The federal suits are also slowing our intelligence gathering efforts from detainees. Michael Ratner, a lawyer who has filed lawsuits on behalf of numerous enemy combatants, boasts of this fact. He said, “The litigation is brutal for [the United States.] It’s huge. We have over one hundred lawyers now from big and small firms working to represent these detainees. Every time an attorney goes down there, it makes it much harder [for the U.S. military] to do what they’re doing. You can’t run an interrogation…with attorneys. What are they going to do now that we’re getting court orders to get more lawyers down there?”

* The amendment clarifies the previous understanding of the habeas statute that aliens outside the United States do not have access to our federal courts.

* The amendment only applies to NON-CITIZEN TERRORISTS.

Examples of Habeas Petitions Filed on Behalf of Detainees

* Canadian detainee who threw a grenade that killed an Army medic in firefight and who comes from family with longstanding al Qaeda ties moves for preliminary injunction forbidding interrogation of him or engaging in "cruel, inhuman, or degrading" treatment of him (n.b. this motion was denied by Judge Bates).

* "Al Odah motion for dictionary internet security forms" -- Kuwaiti detainees seek court orders that they be provided dictionaries in contravention of GTMO's force protection policy and that their counsel be given high-speed internet access at their lodging on the base and be allowed to use classified DoD telecommunications facilities, all on the theory that otherwise their "right to counsel" is unduly burdened.

* "Alladeen -- Motion for TRO re transfer" -- Egyptian detainee who Combatant Status Review Tribunal adjudicated as no longer an enemy combatant, and who was therefore due to be released by the US, files motion to block his repatriation to Egypt.

* "Paracha -- Motion for PI re Conditions" -- Motion by high level al Qaeda detainee complaining about base security procedures, speed of mail delivery, and medical treatment; seeking an order that he be transferred to the "least onerous conditions" at GTMO and asking the court to order that GTMO allow him to keep any books and reading materials sent to him and to "report to the Court" on "his opportunities for exercise, communication, recreation, worship, etc."

* "Motion for PI re Medical Records" -- Motion by detainee accusing military's health professionals of "gross and intentional medical malpractice" in alleged violation of the 4th, 5th, 8th, and 14th Amendments, 42 USC 1981, and unspecified international agreements.

* "Abdah -- Emergency Motion re DVDs" -- "emergency" motion seeking court order requiring GTMO to set aside its normal security policies and show detainees DVDs that are purported to be family videos.

* "Petitioners' Supp. Opposition" -- Filing by detainee requesting that, as a condition of a stay of litigation pending related appeals, the Court involve itself in his medical situation and set the stage for them to second-guess the provision of medical care and other conditions of confinement.

* "Al Odah Supplement to PI Motion" -- Motion by Kuwaiti detainees unsatisfied with the Koran they are provided as standard issue by GTMO, seeking court order that they be allowed to keep various other supplementary religious materials, such as a "tafsir" or 4-volume Koran with commentary, in their cells.

7:23 PM  
Blogger Management said...

Detainees Deserve Court Trials

By P. Sabin Willett
Monday, November 14, 2005; A21

As the Senate prepared to vote Thursday to abolish the writ of habeas corpus, Sens. Lindsey Graham and Jon Kyl were railing about lawyers like me. Filing lawsuits on behalf of the terrorists at Guantanamo Bay. Terrorists! Kyl must have said the word 30 times.

As I listened, I wished the senators could meet my client Adel.

Adel is innocent. I don't mean he claims to be. I mean the military says so. It held a secret tribunal and ruled that he is not al Qaeda, not Taliban, not a terrorist. The whole thing was a mistake: The Pentagon paid $5,000 to a bounty hunter, and it got taken.

The military people reached this conclusion, and they wrote it down on a memo, and then they classified the memo and Adel went from the hearing room back to his prison cell. He is a prisoner today, eight months later. And these facts would still be a secret but for one thing: habeas corpus.

Only habeas corpus got Adel a chance to tell a federal judge what had happened. Only habeas corpus revealed that it wasn't just Adel who was innocent -- it was Abu Bakker and Ahmet and Ayoub and Zakerjain and Sadiq -- all Guantanamo "terrorists" whom the military has found innocent.

Habeas corpus is older than even our Constitution. It is the right to compel the executive to justify itself when it imprisons people. But the Senate voted to abolish it for Adel, in favor of the same "combatant status review tribunal" that has already exonerated him. That secret tribunal didn't have much impact on his life, but Graham says it is good enough.

Adel lives in a small fenced compound 8,000 miles from his home and family. The Defense Department says it is trying to arrange for a country to take him -- some country other than his native communist China, where Muslims like Adel are routinely tortured. It has been saying this for more than two years. But the rest of the world is not rushing to aid the Bush administration, and meanwhile Adel is about to pass his fourth anniversary in a U.S. prison.

He has no visitors save his lawyers. He has no news in his native language, Uighur. He cannot speak to his wife, his children, his parents. When I first met him on July 15, in a grim place they call Camp Echo, his leg was chained to the floor. I brought photographs of his children to another visit, but I had to take them away again. They were "contraband," and he was forbidden to receive them from me.

In a wiser past, we tried Nazi war criminals in the sunlight. Summing up for the prosecution at Nuremberg, Robert Jackson said that "the future will never have to ask, with misgiving: 'What could the Nazis have said in their favor?' History will know that whatever could be said, they were allowed to say. . . . The extraordinary fairness of these hearings is an attribute of our strength."

The world has never doubted the judgment at Nuremberg. But no one will trust the work of these secret tribunals.

Mistakes are made: There will always be Adels. That's where courts come in. They are slow, but they are not beholden to the defense secretary, and in the end they get it right. They know the good guys from the bad guys. Take away the courts and everyone's a bad guy.

The secretary of defense chained Adel, took him to Cuba, imprisoned him and sends teams of lawyers to fight any effort to get his case heard. Now the Senate has voted to lock down his only hope, the courts, and to throw away the key forever. Before they do this, I have a last request on his behalf. I make it to the 49 senators who voted for this amendment.

I'm back in Cuba today, maybe for the last time. Come down and join me. Sen. Graham, Sen. Kyl -- come meet the sleepy-eyed young man with the shy smile and the gentle manner. Afterward, as you look up at the bright stars over Cuba, remembering what you've seen in Camp Echo, see whether the word "terrorist" comes quite so readily to your lips. See whether the urge to abolish judicial review rests easy on your mind, or whether your heart begins to ache, as mine does, for the country I thought I knew.

The writer is one of a number of lawyers representing Guantanamo Bay prisoners on a pro bono basis.

7:24 PM  
Blogger Management said...

Vote to strip rights of Guantanamo prisoners may be reconsidered

By Frank Davies
Knight Ridder Newspapers

WASHINGTON — For almost 800 years, the "great writ" of habeas corpus has been a bedrock principle of English and U.S. law, from the Magna Carta to today's jails and courts. It's the means for a prisoner to contest his or her imprisonment.

That's one reason legal experts were stunned when the Senate, after an hour of debate, voted Thursday to overturn the Supreme Court's extension of habeas-corpus protection to 500-plus detainees at the Guantánamo Bay base in Cuba.

Opponents vowed Friday to fight the measure, and negotiators on the issue said the Senate may reconsider it early next week. The White House, which previously opposed oversight of Guantánamo by Congress and the courts, supports the Senate action, spokeswoman Jeanie Mamo said Friday.

Under the provision, proposed by Sen. Lindsey Graham, R-S.C., suspected terrorists held at Guantánamo no longer would be allowed to challenge their detentions in federal court. Most of the detainees were captured in Afghanistan or Pakistan, and many have been held for almost four years without charges.

The provision would reverse a 2004 Supreme Court decision that held that the detainees have the right to sue. Almost 300 detainees have filed petitions in U.S. district court in Washington since.

The Graham proposal also would block Monday's Supreme Court decision to hear some detainees' challenges to military trials set to be held at Guantánamo. It also would stop a case being considered by the U.S. Circuit Court of Appeals for the District of Columbia on how habeas-corpus cases should be handled.

Graham said his proposal was intended "to correct the balance" in how terrorism suspects should be treated: as enemy combatants, not as potential criminal defendants. He said the action was needed because Congress' failure to set legal procedures for dealing with the detainees had forced the courts to step in.

"We've been chicken, to be honest, but now we're trying to bring some clarity to the legal confusion," Graham said. He said his proposal is part of a package with Sen. John McCain's amendment — adopted by the Senate last month — to ban cruel and inhumane treatment of prisoners.

Many legal experts said the reach of Graham's proposal was breathtaking.

The Senate is "trying to reverse a Supreme Court case of great magnitude and scuttle another one," said Scott Silliman, a former Air Force lawyer who heads Duke University's Center on Law, Ethics and National Security. "This is momentous."

Opponents are scrambling to overturn the Senate vote. Sen. Jeff Bingaman, D-N.M., is planning an amendment that would remove the habeas-corpus provision, and the Senate may take that up Monday.

John Hutson, a retired rear admiral and former judge advocate general of the Navy, is rounding up signatures from about 60 former officers who oppose the proposal. The National Institute of Military Justice, a nonpartisan legal group, also is opposing the measure.

8:19 PM  
Blogger Management said...

The Graham Compromise -- A Step Forward???
[Dave Glazier, Tuesday November 15, 2005 at 7:32pm EST]

Last week the Senate adopted a controversial provision intended to strip Guantanamo detainees of the right to challenge their detention via habeas corpus petitions in U.S. federal courts. Although to my reading the language literally applied only to challenges to detention, not trials, according to this account in Slate, the provision was adopted following erroneous testimony by its sponsor, Senator Graham of South Carolina, that U.S. service members lacked the right to challenge their own court-martial convictions via habeas proceedings. In fact our military personnel have always availed themselves of the right to habeas review; the Supreme Court held in a seminal 1857 case, Dynes v. Hoover, that courts-martial were not judicial tribunals as defined by Article III of the Constitution and thus were not subject to direct appellate review, but confirmed that habeas challenges to court-martial jurisdiction were permitted. Over the next century and a half the Court proceeded to expand the scope of issues it would consider under the rubric of “jurisdiction” so that modern habeas review of military and civilian trials is essentially equivalent.

Historically, as I’ve explored in greater detail here, military commissions and courts-martial have received exactly the same post trial review, and military commissions received habeas review during and after both the Civil War and WWII. The current DOD military commission directives, providing for military commission review by a one-of-a-kind ad hoc panel of individuals who are generally distinguished but collectively lack real expertise in both military law and the law of war, is an unprecedented departure from past practice, and is one of the issues I think calls for judicial review (although I note Eugene Fidell of the National Institute of Military Justice, who I highly respect, suggests that the review panel be considered the equivalent of a service Court of Military Review in a standardized appeal proces). In any event clarification of the appeal process is particularly important today because military personnel now have access to the Court of Appeals for the Armed Forces which didn’t exist at the time of the last military commission use, and have had the prospect for direct appeal from that forum to the U.S. Supreme Court since 1983. One wholly inexplicable aspect of the Bush Administration’s approach to the military commissions has been the effort to deny judicial review based on the fact FDR attempted to do so in 1942. Even while upholding the WWII Nazi saboteur trial in Ex parte Quirin, the very fact the Court assembled in a special summer session to hear that one case definitively rebuked Roosevelt’s attempt to foreclose review by executive fiat.

In any event, the Senate today adopted a new “compromise” amendment restoring some judicial review of both alien detention and trials, but creating what I perceive to be real potential for letting significant legal issues go unresolved.

The first section of the amendment is a somewhat positive advance, requiring the Secretary of Defense to submit to Congress the formal procedures for the conduct of the initial Combatant Status Review Tribunals (CSRT) as well as the periodic Administrative Review Boards. It bars use of statements obtained “with undue coercion” and requires the process be overseen by an executive official senior enough to have received Senate confirmation. If further bars any changes to the processes without 60 days notice to Congress. Unfortunately "undue coercion" is at best an ambiguous standard subject to considerable abuse; it would be far preferable to anchor this protection in terms already defined by a known legal standard.

But it is the judicial review provisions that should give cause for greatest concern. First, all U.S. courts are stripped of habeas jurisdiction over claims by any alien detained at Guantanamo. In its place, the D.C. Circuit Court of Appeals is given limited jurisdiction to hear claims that an individual’s CSRT failed to comply with DOD’s rules, or that applying those rules is inconsistent with the Constitution or federal law. There is no authority to reach the merits of a CSRT decision, and more fundamentally, no authority to hear challenges to the conditions of detention. This latter point is critical because the “enemy combatant” designation seems to invalidly conflate two legal regimes – that of the enemy belligerent subject to detention in “camps” for the security of the capturing state, and the illegal combatant subject to trial for violation of the law of war and imprisonment following conviction. The Administration’s approach of keeping detainees for years in conditions equivalent to high security prisons without trial is absolutely without precedent or foundation in U.S. or international law. Yet unless a court will entertain a “constitutional” vice statutory habeas challenge, even the compromise Graham amendment seems to eliminate any means to seek judicial review of this vital legal question.

The compromise does create a limited right of appeal for individuals convicted by military commission directly to the D.C. Circuit Court of Appeals. Individuals sentenced to 10 years or more get an appeal of right; lesser sentences may seek discretionary review. But these appeals are again limited to the narrow questions of whether the military commission complied with the DOD governing directive (which arguably contains a number of serious legal flaws) and “whether subjecting an alien enemy combatant to such order is consistent with the Constitution and laws of the United States.” Arguably the D.C. Circuit could interpret this latter language broadly enough to include authority to review the validity of the military commission procedure, but the more likely interpretation would be to simply find it to authorize review of threshold jurisdiction. Based on existing precedent including Quirin, Yamashita, and Eisentrager, it seems unlikely that the commissions' jurisdiction over an alien outside the U.S. would be denied. One key issue will be whether the courts are empowered to review military commission compliance with international law. Treaties, made part of the supreme law of the land by the Constitution, would seem to fall within the language of the amendment, but given the executive’s determination to avoid application of the Geneva Conventions, it is customary international law that is more likely to provide the source of governing norms. The U.S. tried scores of Germans and Japanese for violating these laws after WWII; yet the amendment may give the U.S. government a pass on being tested for its own compliance unless courts are willing to apply the turn of the century holding in The Paquete Habana calling for use of customary norms as the rule of decision in US courts where no statute, treaty, or other controlling directive applies.

Bottom line: the compromise may be a step forward from the original Graham amendment, but for anyone who believes that what separates us from them is respect for the rule of law, it is dangerously inadequate. And by applying specifically to Guantanamo only, it leaves open the possibility that the government can avoid legal scrutiny of its treatment of detainees at other off-shore locations, thereby providing further incentive for the use of "black" sites. The Guantanamo military commissions are exercising power constitutionally committed to Congress "to define and punish . . . offenses against the Law of Nations." While Congress has historically elected to allow the executive to exercise this authority with few specific checks, restricting judicial oversight in the manner this amendment does only serves to facilitate unchecked abuse of authority.

10:43 AM  

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