Rhetorical questions from recent news

Supermassive (legal) black hole
Amnesty International says new conditions in Guantanamo are even worse.
Could it be any worse?

It’s getting hotter in here
Climate change striking sooner than expected, says the new UN IPCC report — which is not good news. The impact is vast too.
Can you feel it now?

Bush asks Congress to allow more eavesdropping
Reuters: "The Bush administration asked Congress on Friday to expand the number of people it can subject to electronic surveillance...also protects companies that cooperate with spy operations." Such a change would modify the existing 1978 law.
Isn't there enough already?

Deal or no deal on nukes
North Korea's got the money it wanted from a frozen bank account, and everything about the oft-rogue state's deal with the international community to close down some of its nuclear facilities seems to be going alright, except the whole closing down the facilities part.
DPRK: Compliant or defiant?

And an irreverently irrelevant question:
What if Bush was a Democrat?

On Hicks and military commissions

David Glazier, a guest-blogger on one of my favorite blogs, a legal blog called Balkinization, wrote an insightful post on the confession of Australian detainee David Hicks and what it means for Hicks and the controversial military commission that tried him.

Australian David Hicks' guilty plea to providing material support to terrorism at Guantanamo Monday should ultimately prove to be a brilliant defense maneuver. The Administration will seek to portray it as a victory for the military commissions, but in the longer run it should produce even greater pressures, both at home and abroad, to terminate these tribunals entirely. Although the confused proceedings lasted only a few hours, that was enough to establish that changes mandated by the Military Commission Act of 2006 (MCA) are insufficient to produce the "full and fair" trials promised by the President when launching this process a half-decade ago.

First, and most importantly, the crime Hicks pleaded to, providing material support to terrorism, is a felony triable in regular federal courts, but not a law of war violation military commissions can lawfully try. The inclusion of this offense in the MCA could allow future commissions exercising hybrid jurisdiction over law of war and statutory offenses to try acts committed after that law was enacted. But retroactive jurisdiction is only permissible over acts clearly violating international law at the time they were committed. Jurisdiction over Hicks, whose conduct dates back to 2001, would be unlawfully ex post facto. The Government bears the burden of proving that this offense violates the law of war, for which I have found no precedent in five years of academic research into military justice and the law of war. If the commission lacks jurisdiction over the charge, any court reviewing the decision per se, or Hicks' subsequent incarceration, should be obligated to set the conviction aside or order his release from custody.

The brilliance of Hicks' plea is that rather than spending months of additional Guantanamo incarceration contesting this point before a tribunal biased against him (more on this below), he can quickly pursue his claim in U.S. and Australian civilian courts more committed to the rule of law.
...
There is good reason for concern that Hicks' case is going to further damage perceptions of U.S. adherence to the rule of law although it does not implicate some of the more egregious aspects of post-MCA commission procedure. Those factors include the likelihood judges will admit coerced testimony and potential that sufficient details about classified sources will be concealed from the defense that they are unable to properly challenge its admissibility or credibility.

Although the MCA did improve the commission process, Hicks' treatment suggests that the government is still not credibly committed to the faithful application of the rule of law in Guantanamo proceedings. Any effort to portray Hicks plea as vindication of the tribunal process is thus both shortsighted and erroneous. At the end of the day, Hicks' plea may even hasten their demise.

There have been several such 'confessions' by major detainees, like that of Khalid Sheik Mohammed, and none of them can be taken seriously. Guantanamo and similar US detention facilities used in the 'war on terror' are the site of means of interrogation on unverified enemies of America; often that interrogation includes torture. After being locked up, tortured, and the works, for years, anyone could say anything. No matter how much the White House spins it — and the mainstream media only follows along — in no way are many extracted confessions credible, not least because they are not reported or witnessed by a third party (i.e. someone not in the government).

More stings to human rights from the courts? Padilla and GITMO

A major front in the battle between human rights activists and the United States government is the Jose Padilla case. Padilla's name has been used by both sides as a terrorist, or a victim of the US's 'war on terror'. A federal judge has now said he's sane enough to stand trial, a move that will certainly reverberate in the world of civil liberties. The judge ruled on his sanity, not the charges, which should be kept in consideration Padilla has had so much buzz, I don't know who to believe anymore — the prosecutors or those against the government. Considering the evidence affirming Padilla's insanity, I tend to disagree more with the government, not surprising considering their track-record.

Slate's Dahlia Lithwick has covered the Padilla case extensively.

Of all the terrifically bad ideas implemented by the Bush administration since 9/11, probably the worst have involved torture. The decision to sideline criminal prosecutions and instead focus on "alternative interrogation" methods was wrongheaded from the get-go. It was wrongheaded as a tactical matter, wrongheaded as a legal matter, wrongheaded as an ethical matter, and wrongheaded as a matter of undermining world opinion.

It is certainly wrong he was held without charge for so long — three years in a South Carolina brig — in a military facility. Who knows if he is yet another terrorist wannabe or a serious threat. I have, however, no doubt in my mind the charges against him are questionable. What does a 'terrorism' charge entitle? If Padilla was being charged with another crime, would the evidence be ample enough, or is slapping a terrorism label on someone an automatic affirmation to the jury of his guilt? It is questions like those that make this debate all the more interesting, not only for Padilla, but for the other Padillas out there, and those to come. Considering this administration's records on cases like these, Padilla might just be lucky to not be in GITMO (see below).


Another story in the same topic range is the decision by a federal appeals court that Guantanamo Bay detainees do not have the constitutional right to challenge their detention. What is going on?

Detainees in Guantánamo Bay suffered a major setback yesterday [20 Feb 2007] when a US appeals court rejected their pleas to have claims against unlawful imprisonment heard. The US justice department, as a result of the ruling, will seek to have hundreds of cases from prisoners pending in federal courts dismissed.

The decision is a victory for the Bush administration, which has had to fend off legal challenges, including a supreme court judgment, since the first of the prisoners began arriving in 2001.

And this is all for people in GITMO the US government doesn't even know are guilty! See the groundbreaking UN report for more.

This latest ruling is a sting to habeas corpus following what looks to be a gradual implementation of the horrendous Military Commissions Act.

technorati tags: padilla, jose+padilla, gitmo, guantanamo+bay, human+rights, constitutional, habeas+corpus, politics, news, united+states, war+on+terror

Gitmo justice: coercion 'evidence' allowed in 'trials'

Just as the Bush administration appears to have a made a move that is only superficially positive in relation to their warrantless wiretapping operations, a new manual has been put together (BBC News) by the United States government on how to give detainees in Guantanamo Bay and elsewhere what can only loosely be considered trials, their name: "military commissions". See the manual here. Anyone who hoped new Defense Secretary Robert Gates would be a voice of moderation on this specific issue is wrong; he was the one who presented the manual to Congress.

These new rules are extremely unfair to people we don't even know are guilty at GITMO, [from the above BBC article:] "new rules would allow terror suspects to be imprisoned on the basis of hearsay or coerced testimony - if a judge ruled the evidence credible". This is a follow-up of the passing of Military Commissions Act of 2006, passed by Congress last year, which infringed on basic human rights as well as the US Constitution. And America is called the 'home of the free'? The funny thing is that by saying that coerced testimony is allowed in these 'trials', the government is admitting it does coerce (torture), which everyone knew anyway!

Up next: the amazing recent testimony of US Attorney General Alberto Gonzales to Congress and more on Bush's expanding executive power in his "war on terror".


UPDATE: British report slams (BBC News) Gitmo and calls for its absolute closure.

technorati tags: alberto+gonzales, robert+gates, congress, gitmo, guantanamo+bay, civil+liberties, war+on+terror, bush, milirary+commissions, politics, news, united+states, current, justice, human+rights

Another assualt on the speck of justice for Gitmo detainees

Imagine: you are detained without charge, possibly innocent, possibly a terrorist, possibly just an unlucky Arab, held in horrible living conditions, scared and confused, humiliated, tortured, lacking legal (and human) rights. The excuse for your detention is the United State's so-called war on terrorism, making you and your rights virtual anomalies in the justice system. And now the law firm that is barely able to represent you (if you're lucky) is being attacked by a senior figure in the government that is holding you with disregard to basic human rights and international law. The firm is even being threatened to choose between its lucrative corporate clientele and you, an 'enemy combatant' being represented pro bono — for free.

United States government official attacks major law firms for representing Guantanamo detainees. The New York Times:

The senior Pentagon official in charge of military detainees suspected of terrorism said in an interview this week that he was dismayed that lawyers at many of the nation’s top firms were representing prisoners at Guantánamo Bay, Cuba, and that the firms’ corporate clients should consider ending their business ties.

The comments by Charles D. Stimson, the deputy assistant secretary of defense for detainee affairs, produced an instant torrent of anger from lawyers, legal ethics specialists and bar association officials, who said Friday that his comments were repellent and displayed an ignorance of the duties of lawyers to represent people in legal trouble.

“This is prejudicial to the administration of justice,” said Stephen Gillers, a law professor at New York University and an authority on legal ethics. “It’s possible that lawyers willing to undertake what has been long viewed as an admirable chore will decline to do so for fear of antagonizing important clients.

“We have a senior government official suggesting that representing these people somehow compromises American interests, and he even names the firms, giving a target to corporate America.”

The same point appeared Friday on the editorial page of The Wall Street Journal, where Robert L. Pollock, a member of the newspaper’s editorial board, cited the list of law firms and quoted an unnamed “senior U.S. official” as saying, “Corporate C.E.O.’s seeing this should ask firms to choose between lucrative retainers and representing terrorists.”

In his radio interview, Mr. Stimson said: “I think the news story that you’re really going to start seeing in the next couple of weeks is this: As a result of a FOIA request through a major news organization, somebody asked, ‘Who are the lawyers around this country representing detainees down there?’ and you know what, it’s shocking.” The F.O.I.A. reference was to a Freedom of Information Act request submitted by Monica Crowley, a conservative syndicated talk show host, asking for the names of all the lawyers and law firms representing Guantánamo detainees in federal court cases.

Mr. Stimson, who is himself a lawyer, then went on to name more than a dozen of the firms listed on the 14-page report provided to Ms. Crowley, describing them as “the major law firms in this country.” He said, “I think, quite honestly, when corporate C.E.O.’s see that those firms are representing the very terrorists who hit their bottom line back in 2001, those C.E.O.’s are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.”

Karen J. Mathis, a Denver lawyer who is president of the American Bar Association, said: “Lawyers represent people in criminal cases to fulfill a core American value: the treatment of all people equally before the law. To impugn those who are doing this critical work — and doing it on a volunteer basis — is deeply offensive to members of the legal profession, and we hope to all Americans.”

The role of major law firms agreeing to take on the cases of Guantánamo prisoners challenging their detentions in federal courts has hardly been a secret and has been the subject of many news articles that have generally cast their efforts in a favorable light. Michael Ratner, who heads the Center for Constitutional Rights, a New York-based human rights group that is coordinating the legal representation for the Guantánamo detainees, said about 500 lawyers from about 120 law firms had volunteered their services to represent Guantánamo prisoners.

Lawyers expressed outrage at that, asserting that they are not being paid and that Mr. Stimson had tried to suggest they were by innuendo.

Christopher Moore, a lawyer at the New York firm Cleary, Gottlieb, Steen & Hamilton who represented an Uzbeki detainee who has since been released, said: “We believe in the concept of justice and that every person is entitled to counsel. Any suggestion that our representation was anything other than a pro bono basis is untrue and unprofessional.” Mr. Moore said he had made four trips to Guantánamo and one to Albania at the firm’s expense, to see his client freed.

That’s what defense attorneys do: defend defendants in a court of law. It is their job. I guess the Pentagon does not understand that. As a matter of fact, they may well be breaking the law by detaining such people in the first place, and whomever the official who spoke is, he should know his comments only add to the case against the Department of Defense and this Bush administration for the abuses perpetrated in places like Guantanamo Bay. His comments only add to the publicity over the human and legal abuses at GITMO (thanks!) — and other detention facilities, many of them secret. Even though the Pentagon has disowned the official’s comments, there have been other recent incidents when the government criticized those giving legal and humanitarian help to detainees.

technorati tags: GITMO, guantanamo, pentagon, united+States, politics, department+of+defense, law+firm, justice, detainees, human+rights, war+on+terror, bush, law, stimson, news, in+the+news, new+york+times, commentary, current+affairs, usa