War Crimes

The U.S. Court of Appeals for the District of Columbia Circuit ruled unanimously that there is no justification for the “enemy combatants” designation of detainees held at the U.S. naval facility in Guantanamo Bay, Cuba.

The case involves Hazaifa Parhat, a member of the Chinese dissident group, Uigher. The federal appeals court ruled the Pentagon used the “enemy combatant” designation inappropriately and ordered the government to release him, transfer him to another country, or afford him the right to appeal his detention in federal court; an apparent consideration of the U.S. Supreme Court decision in Boumediene v. Bush and Al Odah v. U.S.

The case marks the first court test of the “enemy combatant” designation. The circuit ruling is part of a review process enacted by Congress as part of the Detainee Treatment Act of 2005.  The DTA, the government argued in Boumediene, served as an effective substitute for the writ of habeas court.  The designation, however, is part of the Combatant Status Review Tribunal, a military proceeding whereby suspects are determined illegible for detention at Guantanamo, but are afforded no right to counsel, have no access to evidence against them, nor are they made aware of the charges they face.

Parhat and 16 other Uighers were captured in Afghanistan in the early stages of the so-called war on terror.  The group is a dissident Muslim sect considered a foreign terrorist organization by the U.S. government following a formal request by Beijing.  The group has not engaged in hostile acts against the United States.

The lawyers for Parhat said that while the decision was announced Monday, their client remained unaware of the decision because he remains in solitary confinement in Guantanamo.

NPR’s Nina Totenburg in her commentary on the case said the decision amounts to “big trouble” for the Bush administration.

The Diane Rehm show Tuesday hosted a round-table discussion on the latest decision from the U.S. Supreme Court regarding the rights of detainees held at the U.S. detention facility at Guantanamo Bay, Cuba.

Thursday the Supreme Court ruled it unconstitutional to deny Guantanamo prisoners the right to challenge their detention. Implications of the ruling, and the debate between creating a new “national security court,” vs. trying militarily detained terrorism suspects into the federal court system.

Guests

Shayana Kadidal, senior managing attorney for the Guantanamo Global Justice Initiative at the Center for Constitutional Rights

Glenn Sulmasy, national security fellow at Harvard University’s Kennedy School of Government; judge advocate and law professor, U.S. Coast Guard Academy

John Hutson, adviser to Sen. Barack Obama’s presidential campaign; president and dean, Franklin Pierce Law Center; former judge advocate general for the U.S. Navy

Kori Schake, foreign policy adviser to Sen. John McCain’s presidential campaign

The audio link to the show is provided here

Today, the Supreme Court denied certiorari over a mandamus action filed by Syrian Abdul Rahim Abdul Razak Al Ginco. While this was the first detainee challenge to be acted on since last week’s Boumediene decision, it was a mandamus action rather than a habeas action and so Boumediene probably did not affect the justices’ deliberations.

Applying Boumediene, lawyers for a detainee whose case is before the Fourth Circuit have filed a supplemental brief arguing that language in Boumediene precludes the executive branch from ordering him indefinitely detained. The Supreme Court explicitly declined to reach that issue, and since that detainee - Ali Saleh Kahlah Al-Marri - had already been granted habeas rights by a prior Fourth Circuit decision, it is unclear what effect Boumediene will have on his case.

For those interested in a more detailed treatment of the Boumediene decision, the international law blog Opinio Juris is running a symposium.

In yet another resounding slap in the face to the Bush administration on its policies during the so-called war on terror, the U.S. Supreme Court Thursday ruled 5-4 that foreign nationals held at Guantanamo Bay have a right to challenge their detention in civilian courts.

“We hold these petitioners do have the habeas corpus privilege,” Justice Anthony Kennedy said, writing for the majority.

The Court, issuing its opinion on Boumediene/Al-Odah v. Bush, cautioned it was not ruling the detainees were unjustly detained. That, Kennedy said, was a matter left to District Court judges.  Instead, the court ruled that Congress has violated the constitution when it took away habeas rights.  If Congress wishes to suspend the writ of habeas corpus, the Court said, it may only do say when the United States is facing a rebellion or an invasion.  Presumably, the international threat posed by transnational terrorist groups, such as al-Qaida, do not fall within that Constitutionally defined doctrine.

The Supreme Court in earlier cases deemed the prior Bush-indoctrinated war crimes tribunal illegal because only Congress has to the right to establish laws of merit. In response, Congress enacted a new set of tribunal procedures and amended the Uniform Code of Military Justice to include, among others, conspiracy to commit terrorist acts against the United States as a violation of the laws of war.

The ruling follows the beginnings of the tribunal proceedings for self-proclaimed Sept. 11-mastermind, Khalid Sheik Muhammad and other co-conspirators.

KSM (who has confessed) and his codefendants had a preliminary hearing Thursday. The Washington Post notes that, far from a secret undertaking in a dark room, it was attended by two dozen members of the international press, some of whom blogged about the proceedings.

Aside from rejecting appointed counsel, KSM weighed in on same-sex marriage (he’s opposed to it) and helped a court sketch artist do a more accurate - or at least, more flattering - drawing of his nose.

As the Post notes, KSM and his defendants sat at the same table and had the opportunity to confer. According to the attorney for one co-defendant, KSM used the opportunity to push the others to reject legal representation.

“It was clear Mr. Mohammed was trying to intimidate Mr. al-Hawsawi into not having us as counsel,” Jackson said after the hearing ended on Thursday evening. “He was shaking.”

al-Hawsawi, who is accused of financing the attacks, joined the other defendants in rejecting counsel. To ensure they have the opportunity to defend themselves, the court has promised to turn over evidence - including classified evidence - to individuals who stand accused of planning the 9/11 attacks. Other defendants are Walid bin Attash, accused of running an Al Qaeda training camp; accused sleeper cell coordinator Ramzi Binalshibh; and Ali Abdul Aziz.

It is unknown if classified evidence in an ongoing conflict has been turned over to accused war criminals before, or how the necessity of disclosing evidence will affect what cases prosecutors are able to present before the Combatant Status Review Tribunals.

Khalid Sheik Mohammed faces the U.S. military tribunal at Guantanamo Bay, Cuba, Thursday.  The Pentagon charged KSM, along with several other co-conspirators, with terrorism and one count of murder for every victim of the Sept. 11 attacks on New York, Pennsylvania and Washington D.C.  If convicted, each faces the death penalty.  KSM claims, among other things, he is the mastermind behind the Sept. 11 plot.

Critics of the move charge the Pentagon with politicizing the trial as the controversial presidency of George Bush draws to a close.  The tribunal faced international charges of deplorable treatment of the detainees there. The overall U.S.-led effort in the so-called war on terror witnessed broader criticism for its “extraordinary” interrogation techniques (waterboarding) and secret prisons peppered throughout Eastern Europe and Central Asia operated by the Central Intelligence Agency (this will be the first time the world sees KSM since his early morning capture in 2003.)

Furthermore, the U.S. Supreme Court has weighed into the tribunal to determine its legal nature.  Each time the matter appeared before the high court, the Justices chipped away at the general structure of the system.  Among several issues are matters of jurisdiction (the tribunal takes place on a U.S. naval base in a foreign country) and the use of ex post facto law, or defining an act as a crime after it took place.  For example, the Pentagon considered conspiracy to commit terrorism a grave violation of the laws of war after it captured what it calls unlawful enemy combatants.  Finally, the Pentagon claims the detainees do not have the right to challenge their imprisonment in the court systems, or the right to habeas corpus — one of the longest standing foundations of modern civilized law.

Is the United States politicizing the issue by finally putting its highest profile targets before a court?  Probably.  Or is the United States pushing the issue forward before the U.S. Supreme Court weighs in on a package of cases that may finally settle the habeas issue?  Most likely.

Reuters reports today that as chief plotter Khalid Sheikh Mohammed and other 9/11 defendants, it is not clear whether inculpatory statements made by the defendants will be admissible into evidence at their trials or which statements prosecutors will seek to introduce. Since many defendants will likely allege such statements were only made as a result of physical coercion, they provide a very shaky foundation for major prosecutions. (In Sheikh Mohammed’s case, however, finding public inculpatory statements should not be difficult).

As Daniel noted a few weeks ago, one of the six defendants the prosecution had initially sought to try jointly, Mohammed al-Qhatani, has already been separated for trial purposes and some commentators conjecture it had to do with particular flaws in the evidence against him. In Al-Qhatani’s case, the presiding judge refused the charges against the man who is accused of plotting to serve as the 20th 9/11 hijacker without prejudice, so the government may refile the charges at any time.

Arraignments are scheduled for Thursday, June 5, but it is very unlikely that either the prosecution’s strategy or the standards the judges will apply in determining which inculpatory statements to admit into evidence will be clarified at that time.

SAN JUAN, Puerto Rico (AP) — A military judge on Friday postponed the first war crimes tribunal at Guantanamo Bay, saying he wants to wait until the Supreme Court makes its highly anticipated ruling on the right of detainees to challenge their confinement in civil courts.Navy Capt. Keith Allred ruled the trial for Osama bin Laden’s former driver should be delayed seven weeks, until July 21, in case the Supreme Court ruling affects his case. He scheduled pretrial hearings to begin a week earlier.

A Supreme Court ruling is expected by June 30.

Defense lawyers for Salim Ahmed Hamdan, whose trial was scheduled to start June 2, had requested a postponement. Military prosecutors had said they were eager to go to trial.

The military judge’s ruling is the latest in a series of delays for the government as it tries to prosecute Hamdan, a Yemeni, for acting as bin Laden’s personal driver in Afghanistan, helping him to evade U.S. retribution following the Sept. 11 attacks.

An arraignment for the confessed mastermind of the Sept. 11 attacks, Khalid Sheikh Mohammed, and four other alleged plotters is scheduled for June 5 at the U.S. Navy base in southeast Cuba.

A Pentagon spokesman said Friday there are no plans to postpone the arraignment because of the Hamdan case ruling.

Allred said in his ruling that the postponement gives the prosecutors and defense “the benefit of a decision that may well change the tenor or conduct of the trial.”

A delay, he said, also avoids the “potential embarrassment, waste of resources and prejudice to the accused,” if the Supreme Court ruling forces a halt to the proceedings mid-trial.

“The accused has been in confinement for six years, and another month’s wait will not prejudice any party to the case,” Allred wrote.

Defense lawyer Andrea Prasow said the delay was welcome.

“We specifically sought the continuance and are very pleased that the judge agrees that all parties will benefit from the Supreme Court’s guidance regarding the applicability of the Constitution to detainees held at Guantanamo,” she said in an e-mail to The Associated Press.

In a separate ruling, the judge ordered a psychiatric evaluation for Hamdan to determine if he is competent to stand trial. A psychiatrist hired by his lawyers found he suffers from depression and post-traumatic stress disorder and cannot participate in his defense. The military says he has no signs of any mental problems.

Hamdan is charged with supporting terrorism and faces life in prison if convicted. His attorneys do not dispute that he was a driver for the al-Qaida leader, but insist he was just a low-level employee who had no role in planning or carrying out attacks against the U.S.

The U.S. holds about 270 prisoners at Guantanamo and has said it plans to bring about 80 before the tribunals — the first to be held by the United States since the World War II era. One detainee has been convicted: David Hicks, who under a plea deal served a nine-month prison sentence in his native Australia.

The Supreme Court is considering a challenge to a provision of the Military Commissions Act of 2006 that denies Guantanamo detainees the right to file petition of habeas corpus.

Habeas corpus is a centuries-old legal principle, enshrined in the Constitution, that allows courts to determine whether a prisoner is being held illegally.

The government says foreigners held outside the United States have no constitutional rights and that Congress has stripped federal courts of jurisdiction in the detainee cases.

The pending case before the court is the third time the Supreme Court has examined the rights of the detainees.

Twice before, the court has ruled against the administration. Each time Congress and the White House have changed the law in an effort to keep the Guantanamo prisoners from contesting their detention before American judges.

The chief judge for the U.S. war crimes tribunal at the naval detention facility in Guantanamo Bay, Cuba, set a June 5 court date for the self-professed mastermind of the Sept. 11 attacks, Khalid Sheik Mohammed, and four other suspected co-conspirators. 

Marine Col. Ralph Kohlmann, who presided over the earlier trial of Australian David Hicks, notified the military defense attorneys by e-mail Wednesday evening he would personally handle the case. The June 5 date precedes a high-profile case before the U.S. Supreme Court that would have a major impact on the tribunal proceedings. The court is set to review Boumediene v. Bush and Al Odah v. U.S, weigh a challenge to Gates v. Bismullah all while the Pentagon plans to vet Bismullah through another Combatant Status Review Tribunal to determine his eligibility to face the war crimes tribunal.

The Supreme Court packages consider the expansion of the rights of civilian courts to review military legal proceeds from the Guantanamo Bay cases. It is peculiar that the U.S. government announced the date of the KSM trial following a scheduling decision from the Supreme Court.

KSM and the other five co-conspirators have so far not been afforded legal counsel versed in death penalty cases, a penalty the U.S. government seeks for conspiracy to commit terrorist acts.  Lawyers with the American Civil Liberties Union slated to defend the high-profile suspects slammed the Pentagon for “brazenly disregarding the rights of the accused without any consideration for due process.'’

“This approach will only add to the illegitimacy of the military commissions, which … make a mockery of our Constitution and American values,” lawyer said.

Judge Susan Crawford, the prosecutorial authority for the U.S. military tribunal at the naval detention facility at Guantanamo Bay, Tuesday refused charges filed by prosecutors against Mohammed al-Qahtani, an alleged Sept. 11 conspirator.

Crawford accepted charges filed against five other high-profile suspects, including alleged Sept. 11 mastermind Khalid Sheik Mohammad and Ramzi bin al-Shieb.  The U.S. military is seeking the death penalty in all cases.

Crawford’s reasoning for dismissing the charges against Qahtani is not public information.  He remains in custody as an “enemy combatant” and the U.S. military has the authority to refile the charges.

Immigration authorities detained Qahtani, a Saudi national, at the airport in Orlanda, Fla. U.S. authorities believe he was intended to be one of the Sept. 11 hijackers along with Zacarias Moussaoui.