This is how George W. Bush and Dick Cheney got Ahmed Khalfan Ghailani, suspected of involvement in the bombing of two US embassies in East Africa in 1998, off hundreds of murder charges: They had him tortured. Ghailani was convicted Wednesday of conspiracy to damage US government property, for which he could well face life imprisonment, but was acquitted of murder charges stemming from the deaths caused by the blowing up of the embassies. The US right wing is jumping up and down and denouncing Attorney General Eric Holder for trying Ghailani in a civilian court instead of in a military tribunal, and implying that he got off because civilian law is more lax than that of the tribunals would have been. For instance, Rep. Peter T. King (R-NY) thundered, “This tragic verdict demonstrates the absolute insanity of the Obama administration’s decision to try Al Qaeda terrorists in civilian courts.” King, defended Bush’s commitment to torturing people, saying “Bush deserves credit for what he did.” King should be aware that advocating war crimes itself was considered a crime at the Nuremberg trials. In fact, the government case against Ghailani was undermined precisely by Bush and Cheney and their foaming-at-the-mouth supporters on the Right, which increasingly deserves to be called simply American Fascism. The case was undermined by the use of torture. When Bush admitted in his memoirs to torturing people, he may as well have just grabbed the key from Ghailani’s prison guard and stuck it in the jail door and yelled for the Tanzanian to make a run for it. Ghailani was waterboarded, i.e. tortured, into revealing his relationship with Hussein Abebe, who in turn provided the most damaging testimony against Ghailani. As FDL perceptively wrote, it is possible that Abebe’s own testimony against Ghailani was itself coerced. On Oct. 5, Judge Lewis Kaplan [pdf] excluded Abebe’s testimony, on the grounds that it was a a fruit of a poisonous tree, i.e. was only available to the prosecution because Bush had had Ghailani tortured (and maybe had had Abebe tortured, as well!) That was why Ghailani could not be convicted of murder, as he from all accounts ought to have been. Had his connection to Abebe been discovered by ordinary questioning or by good police work, then the latter could have freely taken the witness stand. In fact, it seems to me very likely that Abebe would in fact have been discovered in other ways– from the record, e.g., of Ghailani’s cell phone calls, or even just from his own account of his activities. King’s and others’ assertion that a military tribunal could have gotten a conviction on the murder charges is simply incorrect, as Judge Kaplan himself pointed out (h/t FDL): ‘ It is very far from clear that Abebe’s testimony would be admissible if Ghailani were being tried by military commission, even without regard to the question whether the Fifth Amendment would invalidate any more forgiving provisions of the rules of evidence otherwise applicable in such a proceeding. Military commissions are governed by the Military Commissions Act, 10 USC 948a et seq. (the “MCA”). Evidence in such proceedings is governed by the Military Commission Rules of Evidence (“MCRE”). U.S. DEP’T OF DEFENSE, MANUAL FOR MILITARY COMMISSIONS (2010 ed.). MCA 948r(a) and MCRE 304 preclude or restrict the use of “statements obtained by torture or cruel, inhuman, or degrading treatment,” and evidence derived threrefrom, and could require exclusion of Abebe’s testimony. Even if they did not, the Constitution might do so, even in a military commission proceeding.’ The military tribunal still has to operate within the terms of the US Constitution, however much Bush and Cheney (and Peter King) may despise that document, and it is the constitution that would force any judge, military or civilian, to invalidate evidence obtained by torture. It isn’t the fault of American civil justice, still among the best and most upright in the world. It isn’t Obama’s fault, or Eric Holder’s fault. It is the fault of the profound betrayal of American law and values by vapid thugs who want to take us back to absolute monarchy, to bills of attainder, star chambers, divine right of kings, and drawing and quartering and breaking at the wheel. King and other members of Congress, who wish to make an end run around the constitution with their ‘military tribunals,’ are essentially violating the separation of powers, since the artificial tribunals operating beyond the bill of rights are a way for the legislative and executive branches to sidestep the judicial system so as to administer arbitrary ‘justice.’ This way of proceeding is essentially a bill of attainder: “Bills of attainder . . . are such special acts of the legislature, as inflict capital punishments upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. If an act inflicts a milder degree of punishment than death, it is called a bill of pains and penalties. . . . In such cases, the legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence, or not.” The actually existing constitution of the United States of American forbids bills of attainder (Article I, Section 9 ), as an abuse of the British Old Regime. If Tea Partiers had any integrity and actually stood for the values that their tricorner hats imply, they’d be denouncing arbitrary tribunals themselves. Terrorism, like any other social pathology, can best be fought with a rule of law, not by trampling on the very framework of our democratic system. We don’t have to become al-Qaeda to fight al-Qaeda. In fact, in America’s struggle to win over the Muslims of the world, adherence to our constitution is among our most effective weapons. Gallup found that: ‘ When asked what they admire most about the West, citizens of Muslim countries ranked technology first and liberty and democracy second. They expressed widespread admiration for the freedom of expression and assembly, rule of law, and government accountability they see in the West. ‘ Muslims already know all about military tribunals and torture and arbitrarily tossing people in jail. They are yearning for something better, which we, at least used to, have. Bush and the Bushies screwed up, and they are blaming it on the liberties enshrined in the constitution by men a thousand times their betters, for which generations of Americans have fought and died, and whose memory is being desecrated by the sad likes of George W. Bush, Richard Bruce Cheney, Peter King and the rest of our would-be Anglophone Francisco Francos.
November 18, 2010
INFORMED COMMENT: Bush-Cheney Use of Torture Derails Ghailani Prosecution
July 15, 2008
Today's Amnesty statement on Omar Khadr
Guantanamo video: Omar Khadr should be repatriated to Canada
Posted: 15 July 2008
Reacting to today's release of a video publicly showing Canadian citizen Omar Khadr being questioned at the US detention centre in Guantánamo Bay, Amnesty International called for Khadr to be repatriated to Canada immediately.
The video is the first of a detainee being questioned in Guantánamo and shows Khadr being interrogated by Canadian officials in 2003 when he was just 16 years old.
While he is not shown being directly ill-treated, he is shown crying, calling out for help repeatedly and showing his wounds to the officials. He is also shown as being without legal representation.
Amnesty International said:
'No one who was a child at the time of their alleged crime should be tried by military commissions, which have no juvenile justice provisions whatsoever.
'Omar Khadr should either be repatriated and tried in Canada by an ordinary court or released.
'The treatment of Omar Khadr throughout his detention violates the USA's obligations under international law, which requires that in all actions concerning children the best interests of the child must be a primary consideration.
'The US has violated international standards by refusing to recognise Omar Khadr's status as a minor and treating him accordingly.'
On 19 June, Omar Khadr appeared at a military commission pre-trial hearing in Guantánamo. A trial date in his case was set for 8 October 2008. Amnesty International said that the entire military commission system is fundamentally flawed and the tribunals must be abandoned in all cases.
Background information
Omar Khadr was detained by the US military in Afghanistan in 2002, when he was 15 years old. He has been held in Guantánamo Bay since he was 16. He is now 21.
March 31, 2008
YE ES!! The shit is hitting the fan over detainees!! Yessirree, Bob!!
Failed Terror Trials Raise New Questions
by ANNE FLAHERTY
The Associated Press
 |
| Salim Ahmed Hamdan is seen in this undated file photo provided by Prof. Neal Katyal. Military judges dismissed charges Monday June 4, 2007 against Hamdan, a Guantanamo detainee accused of chauffeuring Osama bin Laden, throwing up roadblocks to the Bush administration’s attempt to try terror suspects in military courts. (AP Photo/photo courtesy of Prof. Neal Katyal) |
Failed attempts to charge two terror suspects left the Pentagon scrambling Tuesday to determine a next step and emboldened Democrats who said the rulings exposed a flawed court system.
Military judges ruled Monday that the Pentagon could not prosecute Salim Ahmed Hamdan and Omar Khadr because they had not first been identified as “unlawful” enemy combatants, as required by a law passed last year by Congress.
Hamdan, of Yemen, is believed to have been chauffeur to al-Qaida leader Osama bin Laden. Khadr is a Canadian who was arrested at 15 on an Afghan battlefield, accused of killing a U. S. soldier.
The decision dealt a blow to the Bush administration in its efforts to begin prosecuting dozens of detainees regarded as the nation’s most dangerous terrorist suspects.
U. S. officials chalked up the ruling to semantics and said they were considering their options.
“We certainly disagree with the ruling,” said White House spokeswoman Dana Perino on Tuesday. The Defense Department “is looking at the opportunities for appeal, and what they would say.”
Lawmakers and legal experts agreed the decision was not necessarily a showstopper for the trials, and that new legislation might not be necessary to convict Hamdan and Khadr. Democratic critics, however, said the ruling proved the current law was shabbily written.
Last year, Republicans and the White House pushed through legislation authorizing the war-crimes trials after the Supreme Court threw out President Bush’s previous system as illegal and in violation of international treaties.
Bush established the specialized tribunal system shortly after the Sept. 11, 2001, attacks but had not been able to convict any terrorists because of legal hurdles. After the law passed, the administration convicted Australian David Hicks, who pleaded guilty in March to providing material support to al-Qaida. He is serving a nine-month sentence in Australia.
“Five-and-a-half years later, we find what happens with that kind of arrogant, go-it-alone attitude even conservative courts say ‘no,’” said Sen. Patrick Leahy, chairman of the Senate Judiciary Committee.
Leahy, D-Vt., and other Democrats have drafted legislation that would address various aspects of the law they say is unfair or unconstitutional.
On Thursday, Leahy’s panel is expected to pass a bill that would allow detainees to protest their detentions in federal court; the law passed last year specifically stripped federal courts of their ability to hear habeas corpus challenges. The measure is likely to be offered as an amendment to a $649 billion defense policy bill on the Senate floor later this month.
Co-sponsors of the Judiciary bill include Sen. Arlen Specter, the top Republican on the Judiciary Committee, and Democratic presidential hopefuls: Sens. Hillary Rodham Clinton of New York, Barack Obama of Illinois, Christopher Dodd of Connecticut and Joe Biden of Delaware.
“The current system of prosecuting enemy combatants is not only inefficient and ineffective, it is also hurting America’s moral standing in the world and corroding the foundation of freedom upon which our nation was built,” said Dodd, who also has a separate proposal that would make more sweeping changes.
The defense policy bill, drafted by Sen. Carl Levin, D-Mich., and approved by the Senate Armed Services Committee, is already on track to grant new rights to terror suspects held at Guantanamo Bay, including access to a lawyer regardless of whether the prisoners are put on trial. The bill also would narrow the definition of an enemy combatant and tighten restrictions on the types of evidence used to keep a person detained.
Sen. Dianne Feinstein, D-Calif., a member of the Judiciary Committee, said she wants to go farther to close Guantanamo Bay prison altogether. The prison holds some 380 military detainees suspected of terrorism.
Republicans are expected to oppose most of the Democratic proposals, particularly Leahy’s attempt to restore habeas corpus rights for detainees.
Sen. Lindsey Graham, who helped write the law being used to prosecute detainees, said he thought Monday’s ruling showed the process was working. (?????))
“In the rule of law, words matter,” said Graham, R-S. C., referring to the distinction made by the judges that the detainees must be specifically deemed “unlawful” before being subjected to the military commission. “Lawful” enemy combatants are entitled to prisoner of war status under the Geneva Conventions.
“The best thing we can do is let the legal community work this out before we try to jump in,” said Graham, a member of the Armed Services and Judiciary committees.
Navy Cmdr. Jeffrey Gordon, a Pentagon spokesman, said Tuesday the prosecution is considering its options, which include filing an appeal, and noted that the court of military commissions review would be the “appropriate venue for the appeals process.”
One hurdle, however, is that the review court does not exist yet, said Marine Col. Dwight Sullivan, chief of military defense attorneys at Guantanamo Bay.
Another hurdle is sentiment in Congress that Democrats were not involved in helping create the trials and that the law was hastily written. Then there’s the administration’s patience in general.
“The only way this will spell the end of the military commissions is if this is the straw that breaks the camel’s back,” said Gregory S. McNeal, a law professor at Pennsylvania State University. “In other words, it only means the end if this is the final delay which forces the executive branch to reconsider their whole policy. I don’t believe that is likely.”
Associated Press writer Michael Warren in Mexico City contributed to this report.
Copyright 2008 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.
Copyright © 2008 ABC News Internet Ventures
February 15, 2008
Judge lets driver's lawyers question `KSM', Osama's driver to be allowed to get a defense
By CAROL ROSENBERG
crosenberg@MiamiHerald.com
Overruling government objections, a military judge has agreed to let lawyers for Osama bin Laden's driver send written questions to Khalid Sheik Mohammed and six other alleged senior al Qaeda captives in seclusion at Guantánamo, according to a decision made public Thursday.
Navy Capt. Keith Allred gave the U.S. government until Tuesday to set up an independent security arrangement to help lawyers for Salim Hamdan gather evidence they say could exonerate their client. Hamdan, a 36-year-old Yemeni with a fourth-grade education, is facing trial by military commissions at the remote U.S. Navy base.
At issue is whether captives identified as the senior leadership of al Qaeda can say whether the $200-a-month driver was among those who plotted the suicide attacks on the 1998 U.S. embassies in East Africa, on the USS Cole off Aden, Yemen in October 2000 and the Sept. 11, 2001 attacks.
If Hamdan wasn't part of the plot, his lawyers say, the driver should be found innocent of overarching conspiracy charges. They sought face-to-face interviews with the alleged al Qaeda leaders, notably Mohammed, known in intelligence circles as KSM, the reputed mastermind of the 9/11 plot plus other al Qaeda attacks.
The prosecution argues that Hamdan need not have belonged to the cells that plotted the attacks to have been part of the conspiracy to kill Americans.
In a five-page ruling disclosed by the defense Thursday, Allred ordered the government to assign an independent security officer -- with no ties to the prosecution -- to review the defense lawyers' written questions.
The questions would be then translated by an independent linguist with national security clearances. If Mohammed and the other men reply, their answers would likewise be translated and subjected to a security officer's scrutiny to censor out national security secrets.
Allred limited questions to the captives' duties between 1996 and 2001, when the government alleges Hamdan was a co-conspirator as a driver and sometime bodyguard for bin Laden. They can describe what they did and what their al Qaeda roles were, what they know Hamdan did and the ``relationship between Hamdan and the leaders of al Qaeda, including whether he was planning a conspiracy or a common criminal enterprise to conduct attacks against the West.''
Permissible questions don't include where the men were held or how they were treated in three-plus years of secret CIA custody before their September 2006 transfer to the military at Guantánamo.
The Bush administration considers those details as national security secrets, which is why 15 former CIA captives are now kept in seclusion at Camp 7 apart from the other 260 detainees at the sprawling prison camps.
Navy Cmdr Rick Haupt, the prison camps' spokesman, said Thursday that he was unaware of Allred's order, and would inquire whether those responsible for Camp 7 would be able to implement it.
Even the site of their camp is a secret, although Haupt could not say Thursday whether in fact the location of the camp on the base was classified.
''What does that matter?'' the spokesman said, adding the prison camps were ''just not prepared to discuss'' the restrictions surrounding the special sub-category of captives.
The military judge in effect is emulating a formula designed by a federal judge at the civilian trial of Zacarias Moussaoui, who denied he was part of the 9/11 plot in his material support for terror trial but ultimately pleaded guilty to a conspiracy charge.
In that case, the Department of Justice refused to let the defense send questions to Mohammed, arguing his testimony would harm national security because he was being interrogated in the war on terror.
Hamdan's lawyers have asked to question seven of 15 former CIA detainees including Mohammed; Ramzi bin al Shib, a Yemeni and Mohammed's alleged go-between with some of the 9/11 attackers; Walid bin Attash, another Yemeni who supposedly trained some of the hijackers and Mustafa al Hawsawi, who supposedly helped get funds to the Sept. 11 suicide squads.
Those four men were identified as candidates for execution at Guantánamo as part of a complex six-detainee prosecution the Pentagon unveiled on Monday, charge sheets which await approval from a Bush administration appointee. None of them yet have lawyers.
In addition, Hamdan's lawyers asked to interview Abu Faraj al Libi, Abdul Rahim al Nashiri and Abdul Hadi al Iraqi -- because of their knowledge of other al Qaeda operations in Afghanistan not tied to the Sept. 11 strikes.
The CIA has admitted to waterboarding, or using a techniques known as ''water torture'' to break the will of two of the men -- Nashiri and Mohammed.
But Lt. Cmdr. Brad Mizer, Hamdan's lead defense lawyer, said he does not seek to ask them about their treatment -- only to find out if they might be witnesses to help exonerate the driver, who claims he worked for the al Qaeda founder for an income, not ideology.
Hamdan's chief prosecutor, Army Lt. Col. Will Britt had objected at a hearing last week, saying the prosecution need not prove that Hamdan was part of a planning cell to prove he was an al Qaeda conspirator.
Moreover, he invoked national security and said the military defense lawyer was seeking access to ''the most notorious terrorists ever seen'' based on speculation on what they might say.
Mizer said the ruling was a partial victory for the defense, which sought to meet the alleged senior al Qaeda leadership at Guantánamo to assess their ''credibility or demeanor'' as potential witnesses.
Face-to-face interviews were preferable, he said, because the captives might be suspicious of the written questions, and consider them part of a ruse by interrogators to gather intelligence.
