War Crimes

The defense team for a Canadian citizen held at Guantanamo Bay on terrorist-related charges said the U.S. government withheld essential evidence in its effort to rush ahead with the tribunal in an attempt to validate its existence. Navy Lt. Cmdr. William Kuebler said the government withheld information obtained from several witnesses in his defense of Omar Khadr. He said the government blocked access to testimony from an unidentified U.S. government official who witnessed the 2002 firefight in which Khadr allegedly threw a grenade killing a U.S. Special Forces solider.

Kuebler told the court he was unaware of the eyewitness account until Tuesday – five years after Khadr was captured in Afghanistan at the age of 15. Pentagon officials said they will disclose evidence according the rules set forth by the U.S. war crimes tribunal.

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The status of a Canadian citizen accused of murder, conspiracy, and other terrorist related charges will be determined by a military court Thursday at Guantanamo Bay, Cuba. Omar Khadr, 21, will face a Military Commissions Review board to determine whether he is eligible for prosecution by the war crimes tribunal sitting at the naval detention facility. He faces the war crimes tribunal for allegedly killing Sgt. Christopher Speer with a hand grenade during conflict in Afghanistan in 2002. Khadr was 15 at the time.

On June 4, the U.S. Court of Military Commission Review under Army Col. Peter Brownback dismissed charges against Khadr. Brownback dismissed the charges because prosecutors had designated the two detainees as “enemy combatants.” The tribunal established to handle Gauntanamo Bay cases was set up to try “unlawful enemy combatants,” and Brownback contested that international law requires a different legal process for “legal enemy combatants.” If determined an “unlawful enemy combatant,” Khadr faces charges of murder, conspiracy and spying.

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The war crimes trail for the chairman of the Serbian Radical Party resumed at the international court in the Hague Wednesday.  Vojislav Seselj, 52, is one of the most senior officials of the government of the former Yugoslavia to face prosecution for war crimes during the Bosnian wars.  Seselj faces prosecution for murder, persecution, inhumane treatment and wanton destruction of charges.  Prosecutors say his nationalist speeches incited others to commit heinous acts, including rape and murder, in the effort to achieve a Greater Serbia through ethnic cleansing.

Prosecutors claim his speeches inspired others to commit grievous acts.  Christine Dahl, prosecutor for war crimes in Bosnia and Serbia, told the court that the actions of Seselj amount to raising a paramilitary army for the purpose of ethnic cleansing.  “He indoctrinated them with his own poisonous ideas and sent them to the front lines … where they and others committed unspeakable crimes.”  Dahl said he committed some of the most brutal soldiers to the effort at a Greater Serbia.

Seselj did not deny the charges of contributing nationalist rhetoric.  Acting as his own defense, Seselj countered the charges, saying his actions do not constitute war crimes.  Seselj is expected to give statements in Thursday’s proceedings.  He surrendered in February 2003, stating his intent to turn the tribunal into a circus.  His trial began last November, but was immediately halted following a hunger strike.

He faces a life sentence if convicted on all charges.

AP

Lawyers for a detainee at Guantanamo Bay issued an appeal to the D.C. Circuit Court to delay his war crimes trial. Omar Khadr, a 21-year-old Canadian, faces the war crimes tribunal sitting at Guantanamo Bay for the death of a U.S. soldier in Afghanistan. The appeal challenges the tribunal’s authority to determine his combatant status and argues against the authority of the tribunal itself.

Khadr has been held at the U.S. detention facility at Guantanamo Bay, Cuba for the past five years. He was detained in Afghanistan for allegedly killing Sgt. Christopher Speer, an Army special forces soldier, and wounding another with a grenade.

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The Bush administration is considering several proposals granting more legal rights to detained terrorist suspects at Guantanamo Bay, Cuba. U.S. officials say the legal considerations are a move to close the detention facility at the U.S. naval base and transfer some of the detainees to other facilities in the United States. One proposal being considered is granting the right to determine whether detainees are held legally and afforded adequate counsel to federal rather than military judges.

A case on the docket with the U.S. Supreme Court, Boumediene v. Bush, would award detainees wide ranging habeas rights to challenge their detention. The move by the Bush administration is seen by some critics as an effort to counter any Supreme Court decisions concerning detainee rights. Lawyers within the Bush administration say the move to preempt the Supreme Court may persuade the justices there to shelve the Boumediene case.

There are over 300 suspects held at Gauntanamo Bay. Of those, the Bush administration says nearly half could be repatriated to face prosecution in their home countries. A New York Times report says 80 detainees could face war crimes prosecution in a specially created federal court to handle sensitive national security cases. The military considers more than 100 of the detainees a grave threat to U.S. national security and may move to hold those suspects indefinitely.

An earlier Supreme Court case, Hamdan v. Rumsfeld, forced the Bush administration to develop Congressionally mandate war crimes tribunals at Guantanamo Bay whereby military commissions determine the status of detainees there. The Military Commissions Act of 2006 also severely limits the habeas rights of those in military custody.
NYT

The Bush Administration’s choice to for U.S. Attorney General, Michael Mukasey, refused to address the legality of the interrogation technique known as waterboarding, skirting a potential legal watershed regarding prosecution against Central Intelligence Agency officers.  At confirmation hearings before the Senate Wednesday, Sen. Arlen Specter, R-Penn., said that questioning directed at declaring waterboarding a form of torture would bring in a barrage of legal proceedings against interrogators.  Mukasey referred to the issue several times in his written answers to Senate questioning, saying while he found the tactic “abhorrent” he was hesitant to call it illegal.

Water-boarding is a long-used interrogation technique where a detainee’s face is covered in a cloth.  The face is then doused with water, causing a sensation similar to drowning.  Central Intelligence Officers said they used the procedure in at least three occasions from 2002 to 2003.

The “torture memo” issued in 2002 declares interrogation techniques were permissible by law so long as they didn’t result in pain comparable to organ failure or death.  A later briefing released by the Justice Department in 2004 said that “Torture is abhorrent both to American law and values and to international norms.”  But a later briefing in February 2005 expands on that nature of torture.  Based on a 1952 Supreme Court decision, Rochin v. California, the 2005 brief declares only behavior that “shocks the conscious” was unconstitutional.   Using this definition, the Justice Department and the Bush administration are reluctant to declare waterboarding a form of torture.
In his written statement to the Senate, Mukasey, 66, said “I would not want any uninformed statement of mine made during a confirmation process to present our own professional interrogators in the field … with a perceived threat that any conduct of theirs, past or present, that was based on authorizations supported by the Department of Justice could place them in personal legal jeopardy.”

The Senate is expected to vote on Mukasey’s nomination Tuesday.

AP/UPI 

The U.S. State Department sent a leader to leaders in the U.S. Senate declaring opposition by the Bush administration to a proposed bill that would punish U.S. foreign investors in Sudan. The bill would require U.S. states to divest from their investment portfolios any interests linked to foreign investment in Sudan. The bill punishes entities from investing in Sudan while the Sudanese government failed to take action in what the Bush administration has termed ‘genocide’ in Darfur.

Assistant Secretary of State Jeffery T. Bergner in his letter to Democratic Sen. Harry Reid and Republican Sen. Mitch McConnel said the Bush administration opposed the bill because it infringed on the presidential authority to establish and executive U.S. foreign policy. Bergner said the bill “would impose unilateral measures targeted at U.S. allies and diplomatic powers and would thus shift focus away from (Sudan’s) behavior.” The letter continues that this shift is a direct interference in the presidential authority to regulate U.S. foreign policy.

The Sudanese Accountability and Divestment Act would punish Sudan by forcing investors to unload their investments in Sudanese interests. Article II Section 8 of the U.S. Constitution grants Congress with the authority “to regulate commerce with foreign nations.” Executive powers, however, dictate the ability of the president to control U.S. foreign policy.

AP