Congressional Research Services - Congress’ think tank - has a significant report out discussing the legal issues associated with President Obama's executive order closing the detention facility at Guantanamo Bay (link available here). The report constitutes the most comprehensive publicly available treatment of the issues surrounding Gitmo closure yet offered by the United States government, so it merits careful study by anyone interested in American terrorism law.

(Full disclosure: I spent a summer during law school working for Congressional Research Services, and coauthored a paper with one of the attorneys who wrote this report).

A justice at the military court in Guantanamo Bay moved against an executive order issued by U.S. President Barack Obama to delay tribunals there for 120 days.

Judge James Pohl denied delay requests for a case involving Abd al-Rahim al-Nashiri for his role in the October 2000 attack on the USS Cole, which killed 17 crew members and injured 50 others.

“The Commission is unaware of how conducting an arraignment would preclude any option by the administration,” said Pohl in a written opinion obtained by The Washington Post. “Congress passed the military commissions act, which remains in effect. The Commission is bound by the law as it currently exists, not as it may change in the future.”

Obama issued an executive order shortly after taking office calling for a 120-day delay in cases for 21 detainees charged under the tribunal system at Guantanamo Bay.

Nashiri is scheduled for arraignment Feb. 9 on capital charges.  The Pentagon said it is obliged to comply with the executive order and may subsequently be forced to drop , at least temporarily , its charges.

Nashiri, along with Ramzi bin-Al Shib and Khalid Sheik Mohammed, is one of the three detainees at Guantanamo Bay subjected to “extraordinary” interrogation techniques according to CIA admissions.

The first witness in war crimes trial of Congolese warlord Thomas Lubanga reversed his testimony hours after relaying accounts of his conscription as a child soldier.

The young man told the court rebels from Lubanga's Union of Congolese Patriots nabbed him and forced him into a military camp when he was in the fifth grade, a report said.

“They said the country was in trouble and that young people must mobilize to save the country,” he said. “I said that we were still very small.”

Asked later by deputy prosecutor Fatou Bensouda following a lunch break if the earlier accounts were accurate, the boy recanted.

“No,” he said. “That is not what I intended to say.”

The prosecution and the defense both said, however, that the transcript of the earlier testimony may be incorrect due to poor translations.

Bensouda said she wanted the court to review protective measures for witnesses in the case, but the reversal added to further questions regarding the fairness of the trial.

Yesterday was International Holocaust Remembrance Day, the 64th anniversary of the liberation of Auschwitz, the most notorious of the Nazi extermination camps. We hope you’ll join us in taking a moment to memorialize the more than 1 million people - mostly Jews, but also Gypsies and political prisoners - who were murdered at Auschwitz and the more than 6 million Jews, and more than 10 million others, who perished in the Holocaust.

As David Rothkopf notes, there are some corners of the world where Remembrance Day was not exactly observed diligently. We hope yours wasn't one of them.

The defense team for Congolese warlord Thomas Lubanga Tuesday said secrecy clauses made the trial inherently unfair, adding it struck a blow to the notion of transparent international justice.

All but two of the 93 alleged victims of Lubanga taking part in the trial were allowed to do so under the cloak of anonymity and questioning is by their own agreement, said defense attorney Catherine Mabille.

She claims this use of anonymity and the use of a secrecy clause for the majority of the evidence make the trial unfair, reports said.

“How can we have a fair trial under (these) conditions?” she complained.

She also took issue with exclusion from most of the pre-trial hearings, which she notes were conducted away from public scrutiny.

“If we do things this way, international criminal justice will become very secretive,” Mabille told the judges.

Lubanga filed a not-guilty plea to conscripting child soldiers to fight in his Union of Congolese Patriots in a civil war that raged from Sept. 2002 to Aug. 2003.  International human rights groups said conflicts in the Democratic Republic of Congo have claimed more than 60,000 lives.

The Lubanga trial is the first-ever for the International Criminal Court, which came into force in July 2002.

On Monday, the ICC will begin proceedings in its first trial ever - Congolese warlord Thomas Lubanga Dyilo will stand trial for using child soldiers during the Congo's civil war. (As TRIAL notes, Lubanga's group, the Union of Congolese Patriots (UPC), is also accused of massacring civilians). The legal documents filed before in the case are available from the ICC's website, here.

As Kevin Heller has observed, there have been some problems with the prosecution, including the prosecution's failure to disclose materially exculpatory evidence and a change in the lead prosecuting attorney less than a month before the commencement of trial. Hopefully by now they’ve been ironed out; as this is the ICC's first case, it is essential for the court's credibility for things to run smoothly. It's also an important case:
the Congolese civil war may be the worst humanitarian crisis on Earh, and bringing some accountability to those most responsible for the conflict is a step in the right direction. Moreover, conscripting child soldiers is unmistakeably heinous; for a sense of the impact of the UPC's forcible conscription of children into paramilitary service, it's imperative to look at Bukeni Waruzi's work for WITNESS - which Chris Michael summarizes here.

U.S. President Barack Obama will sign a series of Executive Orders Thursday ordering the closure of the military facility at the naval base in Guantanamo Bay, Cuba within a year.

At issue is the fate of the detainees held there.  Obama Wednesday in his first full day in office ordered a 120-day halt to military tribunals at the facility. Former U.S. attorney David Igelsias, meanwhile, was hired by the Office of Military Commissions to prosecute the detainees.

Iglesias did not indicate whether the detainees would enter the civilian court system or continue in the military tribunal system, just not at the Guantanamo Bay facility.

The Washington Post Wednesday reported that U.S. President Barack Obama ordered a suspension of war crimes trials for suspected terrorists held at the naval facility at Guantanamo Bay.  We may have more on this later in the day.

Washington Post Staff Writer
Wednesday, January 21, 2009; Page A02

GUANTANAMO BAY, Cuba, Jan. 20 — In one of its first actions, the Obama administration instructed military prosecutors late Tuesday to seek a 120-day suspension of legal proceedings involving detainees at the naval base at Guantanamo Bay, Cuba — a clear break with the approach of the outgoing Bush administration.

The instruction came in a motion filed with a military court in the case of five defendants accused of organizing the Sept. 11, 2001, attacks on the United States. The motion called for “a continuance of the proceedings” until May 20 so that “the newly inaugurated president and his administration [can] review the military commissions process, generally, and the cases currently pending before military commissions, specifically.” …..click here to read more

Amnesty International joined a chorus of voices accusing Israel of war crimes for its use of white phosphorus incendiaries over populated areas of the Gaza Strip.

White phosphorus munitions are used for a variety of roles by military forces. It is commonly used as a smoke screen to mask military movements on the ground. It is also known to cause dramatic burns when in contact with skin.

The use of white phosphorus is not prohibited by international law.  Experts say it could form the basis for war crimes charges if it were used indiscriminately over densely populated areas, reports said.

Donatella Rovera with Amnesty International said the extensive use of white phosphorus by Israeli forces in the Gaza Strip was “inherently indiscriminate.”

“Its repeated use in this manner, despite evidence of its indiscriminate effects and its toll on civilians, is a war crime,” she said.

Israel freely admitted to using white phosphorus in its three-week campaign against the Hamas-held Gaza Strip, though denied allegations it was used as a weapon against civilian targets.

Human Rights Watch made similar allegations and the United Nations issued statements on the use of white phosphorus as well.

U.S. Vice President Dick Cheney leaves office next week, leaving behind a legacy of back-room deals and, more importantly, a legacy of torture.

Cheney in his eight years as vice president, and a career in civil service, paved the way for warrantless surveillance of the American people. Cheney also formed a team of legal experts that provided the justification necessary for harsh interrogation tactics, including waterboarding, which presumptive U.S. Attorney General Eric Holder told lawmakers Thursday was a form of torture.

Using his chief counsel, David Addington, Cheney, along with John Yoo with the Office of Legal Counsel, drafted legal opinions justifying waterboarding and other extraordinary interrogation tactics considered torture by most international definitions of the term.

Holder, in his Senate confirmation hearing Thursday, told lawmakers on Capitol Hill the U.S. Justice Department was “badly shaken” by what he described as “improper political interference,” presumably at the hands of Cheney.

Though authorization was later reversed by outgoing U.S. President Bush, the Central Intelligence Agency admitted to waterboarding several “high-value detainees” in the security climate following the wake of the Sept. 11 attacks.  Though moral relativism arguments certainly apply in the case of Sept. 11, the U.S. officials in the Bush Administration crafted legal terms to justify their actions.

“Waterboarding is torture,” Holder said.

“Adherence to the rule of law strengthens security,” he told Senate officials. “America must remain a beacon to the world. We will lead by strength; we will lead by wisdom and we will lead by example.”