Tag: Afghanistan

Cross posted from The Stars Hollow Gazette

The United States Court of Appeals for the District of Columbia Circuit overturned the conviction of Salim Ahmed Hamdan for providing material support for terrorism. Hamdan, a Yemeni, was captured in Afghanistan in 2001

The court ruled that the conviction could not stand because ,at the time of Handan’s conviction “under the international law of war in effect at the time of his actions, there was no such defined war crime”:

The Military Commission Act, a law passed in 2006, does not authorize such retroactive prosecutions, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit ruled. [..]

The ruling called into question whether other Guantanamo detainees  accused of being part of Al Qaeda but not of plotting any specific terrorist attack can receive military trials.

The opinion was written by Judge Brett Kavanaugh, who worked as a lawyer in the White House for President George W. Bush before he was appointed to the bench. His opinion was largely joined by Chief Judge David Sentelle and Judge Douglas Ginsburg, appointees of Ronald Reagan.

Zachary Katznelson, senior staff attorney at the American Civil Liberties Union, said the decision “strikes the biggest blow yet against the legitimacy of the Guantánamo military commissions, which have for years now been trying people for a supposed war crime that in fact is not a war crime at all.” He said the  government should prosecute in civilian courts any Guantánamo prisoners against whom it has enough admissible evidence.

This should come as no surprise to the administration since, as Marcy Wheeler at emptywheel noted in her analysis, this had been predicted (pdf) by an assistant attorney general over three years ago:

There are two additional issues I would like to highlight today that are not addressed by the Committee bill that we believe should be considered. The first is the offense of material support for terrorism or terrorist groups. While this is a very important offense in our counterterrorism prosecutions in Federal court under title 18 of the U.S. Code, there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the law of war. The President has made clear that military commissions are to be used only to prosecute law of war offenses. Although identifying traditional law of war offenses can be a difficult legal and historical exercise, our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.

The DC court agreed:

   First, despite Hamdan’s release from custody, this case is not moot. This is a direct appeal of a conviction. The Supreme Court has long held that a defendant’s direct appeal of a conviction is not mooted by the defendant’s release from custody.

   Second, consistent with Congress’s stated intent and so as to avoid a serious Ex Post Facto Clause issue, we interpret the Military Commissions Act of 2006 not to authorize retroactive prosecution of crimes that were not prohibited as war crimes triable by military commission under U.S. law at the time the conduct occurred. Therefore, Hamdan’s conviction may be affirmed only if the relevant statute that was on the books at the time of his conduct – 10 U.S.C. § 821 – encompassed material support for terrorism.

   Third, when Hamdan committed the relevant conduct from 1996 to 2001, Section 821 of Title 10 provided that military commissions may try violations of the “law of war.” The “law of war” cross-referenced in that statute is the international law of war. See Quirin, 317 U.S. at 27-30, 35-36. When Hamdan committed the conduct in question, the international law of war proscribed a variety of war crimes, including forms of terrorism. At that time, however, the international law of war did not proscribe material support for terrorism as a war crime. Indeed, the Executive Branch acknowledges that the international law of war did not – and still does not – identify material support for terrorism as a war crime. Therefore, the relevant statute at the time of Hamdan’s conduct – 10 U.S.C. § 821 – did not proscribe material support for terrorism as a war crime.

   Because we read the Military Commissions Act not to retroactively punish new crimes, and because material support for terrorism was not a pre-existing war crime under 10 U.S.C. § 821, Hamdan’s conviction for material support for terrorism cannot stand. We reverse the judgment of the Court of Military Commission Review and direct that Hamdan’s conviction for material support for terrorism be vacated.

This ruling could obviously effect the convictions and prosecutions of other Guantánamo detainees. The Administration has yet to announce whether it will appeal, I suspect that they will try.

by Kathy Kelly and the Afghan Youth Peace Volunteers

January 3, 2012

Kabul – Bibi Sadia and her husband Baba share a humble home with their son, his wife and their two little children. An Afghan human rights advocate suggested that we listen to Bibi’s stories and learn more about how a Pashto family has tried to survive successive tragedies in Kabul.

Holding her three year old granddaughter in her arms, Bibi adjusted her hijab and launched into a narrative that began during the Soviet occupation.  The mujahideen had asked Baba to bring them medicines two or three times a week for those injured in the war. For each batch of medicines that Baba delivered, the mujahideen paid him a small sum of money. When the Russian occupiers discovered what he was doing, they beat him severely.  After that, the mujahideen accused him of spying for the Russians and they also beat him badly.

The vicious beatings gave him perforated ear drums requiring six operations and left him permanently hard of hearing.

They also left him mentally unsound, so that Bibi became the sole breadwinner for the family.  “During the time of the Taliban,” Bibi tells us with a soft smile, “I used to make bread, wash clothes and reap other people’s wheat to earn a living,” The mujahideen, having ousted Russia’s favored government and its army, were now in power and frowned on women working.  “I used to work by the moonlight, sewing clothes from animal hide”.

Eventually, Bibi found work as a cleaner at the Aliabad Hospital in Kabul, but the Taliban who had gained power frowned on women working. One evening, the Taliban had come to the hospital and insisted on taking a particular male staff member away.  Warned by the hospital manager, the man in question had managed to escape, but Bibi was not so lucky. When the Taliban spotted her working, they started slapping her. “I crouched in a corner and didn’t speak. When the hospital manager asked them why they were beating me, they said they had previously warned me against working at the hospital and that I hadn’t heeded their warnings.”  This incident was actually Bibi’s first warning, but not her last.

by Kathy Kelly

December 23, 2011

Beneath our flat, here in Kabul, wedding guests crowded into a restaurant and celebrated throughout the night. Guests sounded joyful and the music, mostly disco, thumped loudly. When the regular call to prayer sounded out at 5:20 a.m., the sounds seemed to collide in an odd cacophony, making all music indistinguishable. I smiled, remembering the prayer call’s durable exhortation to live in peace, heard worldwide for centuries, and went back to sleep.

Through most of my life, I’ve found it easy to resonate with the ringing and beautiful Christmas narrative found in the Gospel of Luke, but less so with that jangling discord with which westerners are so familiar-the annual collision between (on the one hand) the orgy of gift-purchasing and gift-consumption surrounding the holiday and the the sweeter, simpler proclamations of peace on earth heralded by the newborn’s arrival. I’ve found myself quite surprisingly happy to spend many Christmases either in U.S. jails or among Muslims living in places like Bosnia, Iraq, Jordan and now Afghanistan. My hosts and friends in these places have been people who are enduring wars or fleeing wars, including, as in the case of U.S. jails, a war against the poor in the United States.

The Christmas narrative that imagines living beings coming together across divides, the houseless family with no room at the inn, the shepherds and the foreign royals arriving, all awakening to unimagined possibilities of peace, comes alive quite beautifully in the community with which I’m graced to find myself here in Kabul.

Five of the Afghan Youth Peace Volunteers are spending winter months in the apartment here which accommodates their group as well as visiting guests such as our small Voices delegation. In recent months, the place has evolved into a resource center for learning languages and exchanging ideas about nonviolent movements for social change. I am filled with fond and deep admiration for these young people as I watch them studying each other’s languages and preparing their own delegation to visit other provinces of this land on the brink of civil war, meeting with other young people wherever they can.

I’ve often described Afghan Youth Peace Volunteers as having bridged considerable ethnic gaps in their steadfast aspiration to someday live without wars. It’s quite impressive, during this trip, to learn from them about how close several of them came to becoming armed fighters.

One young friend recalls having spent three weeks, at age 12, as part of a Taliban group. He had no choice but to go with the Taliban as a conscript. He was given a rifle, as well as adequate food, and assigned to be a sentry. “I loaded the weapon and I fired warning shots,” said our young friend, who is now 21 years of age, “but I didn’t feel good about it.” A village elder intervened, saying the new recruits were too young, and the Taliban released my friend and the other young teens.

We watched a film together in which another youngster, about seven years previously, had acted the role of the leader of a group of children imitating Talib fighters. Carrying sticks, the young actors had harassed a little girl over her determination that she would learn to read. Now we asked the young man, himself a Hazara, how he felt about playing a Taliban child. He acknowledged having grown up believing that anyone who was part of an ethnic group that had persecuted his people could never be trusted.

The father of another youngster had been killed by the Taliban. Still another describes how he watched in horror as Hazara fighters killed his brother.

Last week, the AYPVs welcomed a new friend who lives in a neighboring province and speaks a different language to join them and help them learn his language. Asked about NATO/ISAF night raids and other attacks that have occurred in his area, the new friend said that families who have suffered attacks feel intense anger, but even more so people say they want peace. “However, international forces have made people feel less secure,” he added. “It’s unfortunate that internationals hear stories about Afghans being wild people and think that more civilized outsiders are trying to build the country. People here are suffering because of destruction caused by outsiders.”

The air, the ground, the mountainsides, the water, and even the essential bonds of familial living have been ravaged by three decades of warfare here in Afghanistan. People living here have suffered the loss of an estimated two million people killed in the wars. 850 children die every day because of disease and hunger.

Amid excruciating sorrow and pain, it’s good to see people still find ways to gather for celebrations, even when the sounds seem curious and the dances seem, to some, forbiddingly exotic. Differences between insiders and outsiders become less relevant as people meet one another to celebrate.

Peace can surprise us when it comes, and that alone is abundantly sufficient cause for celebration in this season, wherever we are. Dr. King wrote that “the arc of history is long but it bends toward justice,” and we should not be surprised as new and growing movements around us reveal an unquenchable and ineradicable longing for simple justice. The killing fields that scar our earth and sear the memories of survivors beckon us to look and listen for new ways of living together. Massacres of innocents call to us to reject the easy and familiar and go home by an other way.

The desires to live more simply, to share resources more radically, and to prefer service to dominance are not unique to any place, season, or religion. Such desires may yet herald unions previously unimagined and a better world for every newborn, each one bringing an astonishing potential – as we do if we strive to fulfill it – for peace.

Kathy Kelly (kathyvcnv [dot] org), twice nominated for the Nobel Peace Prize, co-coordinates Voices for Creative Nonviolence. She and two companions are part of a Voices delegation visiting the Afghan Youth Peace Volunteers in Kabul

Overcoming Contradictions

by Kathy Kelly and Hakim

November 16, 2011

Adelaide, Australia -At Tabor House Technical College, 21 young people sit in a semicircle looking curiously at Hakim and me. We’ve been invited to speak with them about the practice of justice.  Hakim, who has lived among Afghans for the past nine years, begins by describing how an Afghan youth, Zekerullah, would greet them.  “Salam,” he says to all. With his hand over his heart, Hakim makes eye contact with each student, and then nods in silent greeting. I smile, having watched Zekerullah do just this, whenever he entered a room. The students are interested.

“You can’t listen only to leaders,” Hakim tells them. “We must put our ears close to the hearts of ordinary people and listen to them.”  Hakim is often poetic, but he’s also a trained physician, prone toward assembling data and seeking careful diagnosis.

Rising early this morning, he prepared for today’s presentation by collecting statistics about government responses, in various parts of the world, to massive manifestations of public opinion.  As expected, the short survey showed that leaders aren’t listening well to ordinary people, that ‘national interests’ routinely overrule the people’s interests:

72% of Australians want their troops to be withdrawn from Afghanistan.

But Prime Minister Julia Gillard insists that Australian troops will remain “till the end of the decade, at least.”

63% of Americans oppose the Afghan war.

But the US is about to sign a US-Afghan Strategic Partnership Agreement that will allow joint military bases in Afghanistan beyond 2024.

80% of the Spanish population support the estimated 6.5 to 8 million Spanish Indignados protesting unemployment.

But the Spanish government has been repressing the protesters since their police cleared out Puerta del Sol Square in Madrid on 17th May 2011.

89% of Chileans support the student protests for free public education.

But Chilean police used water cannons and tear gas to break up a student march on October 6th 2011.

US National polls over October and November 2011 were mixed, with agreement/approval ratings for Occupy Wall Street varying from 59% to 22%, but, generally, approval was larger than disapproval.

Yesterday, New York police cleared out the protesters from Zuccotti Park in New York.

“Do governments hate their people?” Hakim asks, “Or do they simply treat their general public as stupid belligerents?”

He encourages students to recognize the wisdom ordinary people hold, offering as an example Afghan villagers who became his teachers. He thought he had come to assist people in the Afghan village because he had ‘knowledge’ to offer them. He instead found that they changed his life completely.  They taught him about love and community.  

UN Report On Government Torture In Afghanistan:

KABUL, Afghanistan – Suspects are hung by their hands, beaten with cables, and in some cases their genitals are twisted until they lose consciousness in detention facilities run by the Afghan intelligence service and the Afghan national police, according to a study released Monday by the United Nations here.

At War

The report provides a devastating picture of the abuses committed by arms of the Afghanistan government as the American-led foreign forces here are moving to wind down their presence after a decade of war. The abuses were uncovered even as American and other Western trainers and mentors had been working closely with the ministries overseeing the detention facilities and funded their operations.

Read the rest here:

http://www.nytimes.com/2011/10…

Thank you Mr Bush! Thank you too, Mr Obama. And a big shout out to freedom lovers the world over.