In what has been called the most important death penalty case in US history, the government is seeking a 60 day delay in the joint trial by military commission of Guantanamo’s Ramzi bin al Shibh, who, along with four others, is facing war crimes charges resulting from his alleged involvement in the September 11th attacks.

The government is seeking the delay because the rules for military commissions may be substantially changed by legislation (the Military Commissions Act of 2009), intended to overhaul the procedures formalized by the Military Commissions Act of 2006 (‘MCA’).

This request was made as part of a reply to the defense’s writ petition (in a filing with the DC Court of Appeals, the court of appeal for military commissions) requesting an indefinite stay of proceedings; the defense also argued that the MCA is altogether unconstitutional.

While Congress debates a commission overhaul, critics argue that rather than a simple makeover of the commissions - which they see as solely a means to the end of finding all those charged before them guilty and not a proper trial - the detainees’ cases should be brought before the pre-existing tried and tested US court system.

It may seem odd that the requested delay is for one of a class of cases - the all-inclusive ‘military trials’ - consistently reported to have been put ‘on hold’ since President Obama announced soon after taking office that he would close the Guantanamo prison in January 2010; he has thus far (via the prosecution) made two continuance requests to the commissions.

But for trials that are not moving forward by presidential decree, the commission has nonetheless made a few decisions over the last few months.  Due to the fact that hearings at Guantanamo Bay do not amount to a ‘proceeding’, they have thus have been judged not subject to the President’s order.  In other words, never did the commission order a ‘halt’ to ‘any and all actions related to this case’.

In particular, this has meant further scheduling orders regarding one defendant’s (bin al Shibh) competence to stand trial.  These 2009 orders followed issues raised in several 2008 decisions - those denying the defense request for an independent psychiatric expert to examine the defendant, who military doctors have deemed psychotic and kept on psychotropic medication; and those amending this and appointing a defense psychologist, with the proviso that the psychologist not be permitted to meet with bin al Shibh or testify at a competency hearing.

Thus, regardless of the President’s decrees, in August 2009 the commission continued (partially) on, denying the defense request for ‘non-essential’ information regarding alleged inhumane treatment of bin al Shibh during his 4 years in CIA custody that arguably may have caused his psychosis.

And the competency hearing itself, scheduled for September 21st - the date set by the ‘on hold’ commission - is the one for which both the prosecution and the defense are now requesting a delay.

The Pentagon has announced it will allow those prisoners held by the US military in Afghanistan, including the Bagram military facility, to challenge their detention in a new military review system.

The prisoners will be given military officials - not lawyers - to represent them and will be allowed to call witnesses and present a defense before a military review board.

However, many believe the situation at Bagram to be analogous to that of Guantanamo Bay, and that detainees in both facilities should be allowed to challenge their detentions in US courts, as seemingly espoused in the April ruling of U.S. District Judge John Bates.

However, in response to Bates’ ruling, the Obama administration has argued that the two situations are quite different.  Due to Bagram’s location in Afghanistan - a specifically delineated ‘theater of war’ - the Geneva Conventions do allow for detention of prisoners of war captured there.

According to the administration, a purely military review with no resort to habeas proceedings in US courts is in this case sufficient.

But while this might seem a logical argument, the thorny problem remains that some Bagram detainees are non-Afghans, many of them captured in other countries and ‘rendered’ to Bagram, rather than Guantanamo.  Bates’ decision - noting the similarity of the Guantamo and Bagram situations - was with respect to an application made by non-Afghan detainees captured elsewhere and held at Bagram.

While the resolution of this issue will be key for US military and judicial decision makers for years to come, whether it will have any effect in relations on the ground - after 8 years of war and detention - is questionable.

(4)  Holder ‘Appoints’ Special Prosecutor to Review CIA Interrogations

US Attorney General Eric Holder announced that he is expanding the mandate of Special Counsel John Durham to include a ‘preliminary review’ (not yet an investigation) into the legality of CIA interrogations of certain detainees.

Durham was originally appointed in 2008 by then-Attorney General Michael Mukasey to investigate the destruction of CIA videotapes of detainee interrogations.

The decision to begin a preliminary review was based on his examination of two items.  First a report, produced by his department’s Office of Professional Responsibility, regarding the Office of Legal Counsel’s ‘enhanced interrogation technique’ memoranda.  The New York Times reports that this document recommends “reversing the Bush administration and reopening nearly a dozen prisoner-abuse cases.”

The second is the 2004 CIA Inspector General’s report.

(5)  CIA Releases Internal Report

The CIA has now (re)-released this internal CIA report on the agency’s secret detention and interrogation program in response to a request by the ACLU in its ongoing Freedom of Information Act lawsuit.  The document is a detailed report regarding then-CIA Inspector General John L. Helgerson’s May 2004 review of the agency’s program.

The 159 page report was already released by the Bush Administration in 2008, but with all but a few paragraphs blacked out, it was not particularly informative.  The current version, while less redacted, is nonetheless still heavily censored.

The report describes unauthorized practices subject to investigation such as a man being “lifted off the floor by his arms while his arms were bound behind his back with a belt,” another strangled until he passed out and then shaken awake - the process being repeated three times, and another being beaten to death with a large metal flashlight.

It also re-iterates the arguments for authorized ‘enhanced interrogation’ practices, such as waterboarding.

The document’s censor-lite release has been delayed several times on the basis of the possible chilling effect on intelligence sharing, with former Vice President Dick Cheney vociferously defending the authorized practices as effective for information gathering purposes.

It was widely believed that the report would hit at the lack of effectiveness of the authorized techniques.  At first blush, some might argue that it does the opposite by describing certain uncovered plots - such as attacks against West Coast buildings, Heathrow airport and trains.

But it also points out that no evidence existed that any of these plots were “imminent” - nor does it provide information as to whether any were supported by any other evidence at all.  Moreover, “[t]he effectiveness of particular interrogation techniques in eliciting information that might not otherwise have been obtained cannot be so easily measured.”

A particularly good breakdown of the implications of the memo can be found on TIME magazine’s blog.

(6)  Leon Panetta Defends CIA’s actions

CIA Director Leon Panetta, in a statement issued to CIA employees, defends the CIA’s practices inasmuch as they were within the legal guidance provided upon request.  He emphasizes that those practices that fell outside the legal guidance were referred to the Justice Department for investigation, or for internal disciplinary action.

This situation has raised an interesting, much debated question - that is, if the CIA asked for legal guidance but received a bad interpretation, should those acting in good faith under the incorrect interpretation be punished?

While some argue that the tenet ‘ignorance of the law is no excuse‘ (picture for example, a memorandum insulating Bernie Madoff from prosecution because it told him Ponzi schemes were perfectly legal) should mean prosecuting everyone involved from the interrogators to the top officials, the White House has announced, and Holder has reiterated that no one acting in “good faith and within the scope of legal guidance” will be prosecuted.

As for ‘effectiveness’ of the methods, while Panetta states that he doesn’t have any interest in taking part in the debate, he then continues that “[t]he CIA obtained intelligence from high-value detainees when inside information on al-Qa’ida was in short supply.  Whether this was the only way to obtain that information will remain a legitimate area of dispute, with Americans holding a range of views on the methods used.”

But while Americans may hold a range of views on many issues, the proper execution of the law is not generally a matter of public opinion.

From enhanced interrogation to rendition, to the roles of the CIA and the FBI in relation to terrorism, decisions and revelations were made in the last 24 hours that will have a lasting impact on the way the US intelligence community, justice system and government officials interact with each other and the world with respect to suspected terrorist detainees.

The Justice Department, the CIA, the Defense Department and the White House each acted in response to various threads of the continuing debate over the government’s post-9/11 actions, including the CIA’s interrogation techniques and the transfer of detainees to countries where torture takes place.

Recently overshadowed domestically by the antics surrounding the national health care debate, it is hard to overemphasize the importance of these issues to the US playing a credible role both as a model for democracy and in the fight against impunity for other nations.

And although many critics would argue that either too much or too little is being done about past alleged abuses, it should not be forgotten that the ability to have such a debate and the attendant possibility of producing credible results - without threat of violent reprisals - are in many ways on their own a testament to an enviable standard of governance.

(1)  President Obama Creates ‘Interrogation Panel’

First, White House Press Secretary Bill Burton announced the creation of a new ‘interrogation unit’ to be supervised by the National Security Council and situated at FBI headquarters in Washington DC.

Although an FBI official will lead the ‘High Value Detainee Interrogation Group’, that does not mean the CIA is out of the interrogation business, the White House argues, as the unit will include many different elements of the government’s intelligence apparatus.

Nonetheless, the panel, based on a recommendation of the administration’s interrogation task force, represents a significant policy shift towards increased transparency, oversight and use of ‘best practices’ in the heretofore murky world of intelligence gathering.

Whether this can possibly be borne out in practice remains to be seen.

(2) Continued Rendition of Terror Suspects

Similarly, the White House now promises mechanisms to ensure that suspects are not sent to countries where torture is taking place.

The State Department will be responsible for assessing the viability of a country’s assertion that terrorist suspects sent to that country will not be tortured; State, Defense and Homeland Security will also review the status of these assertions.

There are as of yet no specifics as to transparency and oversight of these mechanisms, however, leading some to question if this is in reality any different than previous rendition policy.

(3)  Detainees Identities Shared with Red Cross

Again, in a move towards more accountability, the Department of Defense has agreed to share the names of detainees held by the military to the International Committee of the Red Cross (ICRC), as required by the Geneva Conventions - although the ICRC is still not allowed access to the camps where the detainees are being held.

The re-release of a May 2004 internal CIA report on the agency’s secret detention and interrogation program was again delayed this afternoon, CNN reports.

The document has been requested by the ACLU as part of its ongoing Freedom of Information Act lawsuit.  It is a report regarding then CIA inspector general John L. Helgerson’s May 2004 review of the agency’s program.

A version of the report was released by the Bush administration in 2008, but was so heavily censored that its re-release has been requested.  It is widely believed that the released document will contain a critical analysis of the effectiveness of ‘enhanced interrogation techniques’.

Considering former Vice President Dick Cheney’s statements on CBS’s ‘Face the Nation’ that these practices ‘saved thousands, perhaps hundreds of thousands of lives’ many hope to use the analysis as proof – from sources inside the CIA itself – that the tactics used were both illegal and ineffective.

Time will tell.

The recent release of the Bybee memos outlining Bush-era justification for the use of harsh interrogation techniques raises the issue of legal consequences for former White House officials, not to mention the effectiveness of torture as a method of intelligence gathering.

U.S. President Barack Obama last week said the White House would not pursue legal claims against officials involved in the justification or the practice of so-called torturous techniques — isolation, humiliation, waterboarding – used to illicit “confessor” behavior in detainees.

While lawmakers on both sides of the aisle offered praise to the forward-looking release of the Bybee memos, former CIA Director Michael Hayden lashed out at Obama, telling The Associated Press the release of the memos gives terrorists the information needed to prepare for such interrogation techniques, adding it shows Washington “can’t keep anything secret.”

Meanwhile, Mark Thiessen, a speechwriter (!?) for U.S. President Bush, has come forward in The Washington Post and elsewhere giving tacit approval for such harsh interrogations techniques, saying they led to countless confessions of alleged plots against the United States.

He goes on to use fear mongering — as President Bush had in his campaign for a second term — to justify the continued use of torture.

“President Obama’s decision to release these documents is one of the most dangerous and irresponsible acts ever by an American president during a time of war — and Americans may die as a result,” he writes.

Please.

This is in stark contrast to CIA officers and academics alike who state extreme interrogation techniques are not useful in gleaning factual information from detainees.

“Where physical violence was inflicted during the course of such an attempt (at gathering information), the attempt was particularly likely to fail completely,” writes Albert Biderman in his seminal article, Communist Attempts to Elicit False Confessions from Air Force Prisoners of War.

In a more recent account, storied CIA officer Robert Baer writes in a recent edition of Time magazine that the intelligence community does not view so-called torture as a valid interrogation technique.

“The wisdom inside the CIA has always been that the best intelligence is obtained through persuasion rather than coercion,” he writes.

With Obama reversing course, suggesting a truth panel similar to the 9/11 Commission convene to examine these techniques, one thing is assured, if Khalid Sheik Mohammed — the self-confessed mastermind of the Sept. 11 attacks and recipient of over 180 waterboardings – is not a stark raving terrorist lunatic, he certainly is one now.

That is not American justice.

“The healthy man does not torture others - generally it is the tortured who turn into torturers”

- Carl Gustav Jung

The New York Times reports that a list of terrorism suspects released today by the Saudi government includes eleven former Guantanamo detainees who passed through a Saudi rehabilitation program after their release. There’ve been a number of similar articles throughout the last month, and, indeed, starting in 2004.

The struggles of the Saudi rehabilitation program are particularly troubling, as the Saudi government recently affirmed it will not place special security on released detainees, and the Times story confirms the Saudi program was being used as a model for a Yemeni rehabiliation program still under development.

Approximately 245 detainees remain at Guantanamo; the new Administration has committed to closing the facility. What the administration will do with the detainees is unclear - many will certainly be prosecuted, though what court will hear the cases has not been specified yet - and more reports like today's will certainly make the Administration cautious.

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.

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.