Tag: habeas corpus

SCOTUS Blesses Indefinite Detention

Cross posted from The Stars Hollow Gazette

Another right further diminished by the Supreme Court.

Supreme Court Denies 7 Detainee Cases, Leaving Crippling Limits On Detainee Rights In Place

One day before the fourth anniversary of Boumediene v. Bush, which held that detainees being held indefinitely at Guantanamo Bay have the right to challenge their confinement in federal court, the Supreme Court denied review (pdf) of seven detainee cases that were pending before the court. The decision not to review any of the cases essentially makes the U.S. Court of Appeals for the D.C. Circuit the last stop for detainees seeking habeas corpus. While many detainees won their habeas corpus cases at the trial court level, no detainees have been released from Guantanamo due to these decisions because the DC Circuit has a perfect record of reversing these decisions.

Although today’s action does not have any precedential force, it undercuts the extent to which detainees can seriously challenge their detention by leaving the D.C. Circuit’s pro-detention decisions in place [..]

Marcy Wheeler @ emptywheel explains what the Supreme Court has just blessed:

   

  • Holding a person indefinitely for being in the wrong place at the wrong time-including a school, a road, and a guest house-where suspect people are.
  •    

  • Holding a person indefinitely based on an admittedly error-ridden report the government wrote up itself.
  •    

  • Holding a person indefinitely based on pattern analysis.
  •    

  • Completely upending the role of District Court judges in the fact-finding process.
  • The Justices have abdicated their responsibility  to an ever more powerful Executive branch:

    Especially deserving of review was a petition by Adnan Latif, a Yemeni who was captured near the border between Afghanistan and Pakistan in December 2001. Latif said he had traveled to Pakistan to seek medical treatment; the U.S. government insisted that he was a fleeing Taliban fighter.

    A federal district judge ruled in Latif’s favor, concluding that, because of possible transcription and other errors, a government report of an interview with him was “not sufficiently reliable to support a finding by a preponderance of the evidence that Latif was recruited by an Al Qaeda member or trained and fought with the Taliban.” Overturning that finding, the D.C. Circuit ruled that the government’s evidence was entitled to “a presumption of regularity” and that lower court judges should require that a detainee’s “self-serving account must be credible – not just plausible.” In her opinion, Circuit Judge Janice Rogers Brown (a former California Supreme Court justice) approvingly cited dissents in the Boumediene case and referred snidely to its impracticality and “airy suppositions.” [..]

    Dissenting in the Latif case, Judge David Tatel described the decision as an “assault on Boumediene.” At the very least, the ruling called for a full-fledged review by the Supreme Court. Instead, the justices have abdicated their authority and devalued their own achievement.

    Omar Khadr Trial SUSPENDED ! Defense lawyer collapses in court !

    Yesterday evening the news broke that Omar Khadr’s only attorney, Lt Col Jon Jackson, collapsed in the Guantanamo courtroom during the beginning of the trial !

    (previous diary on the trial & background history here: https://docudharma.com/diar…  )

    A witness posted this at Huffpo:

    http://www.huffingtonpost.com/…

    On Thursday afternoon I watched Omar Khadr’s sole defense lawyer, Lt. Col. Jon Jackson, collapse in the Guantanamo Bay courtroom in the middle of conducting a cross-examination of a key government witness. He was taken away on a stretcher by ambulance, hooked up to an I.V. Fortunately Jackson, who’s only 39 years old, was breathing normally at the time, though as an observer in the courtroom I was stunned. It all happened so suddenly and he seemed to be in perfect health and in complete control of his questioning. I learned Friday morning that the trial has been suspended indefinitely.

    This morning’s update says that Lt Col Jackson suffered a gall stone attack (after having had surgery 2 months ago)  and is being evacuated from Guantanamo to a hospital in the US for medical treatment.   Reporters were told by an official that the trial has been suspended for at least 30 days.  

    Emptywheel at FDL also has this:

    http://emptywheel.firedoglake….

    There is a comment about removing one of the jurors from the case for having so called pre conceived notions


    He said he thought that some earlier policies had lost America its “reputation for being a beacon of freedom.”

    Asked specifically which policies had led him to this conclusion he authoritatively cited examples including; charge without trial, torture, rendition and the denial of access to members of the International Committee of the Red Cross to detainees held in secret locations. He went on to say that he believed a small number of detainees may have been killed while in American custody but added: “I don’t think my views differ from those of the President.”

    By the time he had admitted that he would be “suspicious” of any evidence obtained under torture his fate was sealed.

    Carol Rosenberg’s McClatchy Miami Herald

    http://www.miamiherald.com/201…

    We know from her report Khadr was in the courtroom after all,

    Jackson was put on “convalescent leave,” according to Broyles, a status that allows him to continue to draw a salary and not use up vacation days.

    He cited privacy reasons for not releasing the lieutenant colonel’s health condition but said he was likely being airlifted to Walter Reed Army Medical Center, the Pentagon’s premier hospital. He was on a morphine drip Thursday night at the base hospital.

    Jackson, who has been on the case for about a year, became Khadr’s lone lawyer within a week of his surgery after the Toronto-born teen fired volunteer civilian attorneys Barry Coburn and Kobie Flowers from Washington D.C.

    Parrish ordered the Army defender to stay on the case, but the Pentagon Defense Office provided him no additional assistance beyond two enlisted paralegals who had already been on the case.

    Khadr, who sits in court with three guards behind him, leaped to his feet when his Army defender collapsed about 4 p.m. Thursday, according to Khadr family lawyer Dennis Edney, who functions in the war court only as a consultant because he is not a U.S. citizen. The guards didn’t interfere.

    “We were all shocked,” Edney said.

    Canadian:

    http://www.torontosun.com/news…

    Ottawa Citizen

    We Should Be Embarrassed 8/13/2010

    http://www.ottawacitizen.com/n…

    A United Nations special representative for children and armed conflict issued a statement on Aug. 9, saying “the Omar Khadr case will set a precedent that may endanger the status of child soldiers all over the world.”

    “Even if Omar Khadr were to be tried in a national jurisdiction, juvenile justice standards are clear; children should not be tried before military tribunals,” the statement from Radhika Coomaraswamy explains. “The United States and Canada have led the way in creating and implementing these norms. … I urge both governments to come to a mutually acceptable solution on the future of Omar Khadr that would prevent him from being convicted of a war crime that he allegedly committed when he was a child.”

    Canada’s government has ignored this, as it has ignored questions about the implications of Khadr’s age all along.

    His age, though, is not the only factor that makes many observers of his trial queasy.

    There is also the fact that the judge has ruled that statements Khadr made to his interrogators are admissible, even though they were, as Khadr’s defence argued, “fruit of a poisonous tree.” Khadr was, in the words of a defence submission, “asphyxiated, terrorized by dogs, doused with freezing water and left in the cold.” He was threatened with rape.  

    More Canadian opinion from Chantal Hébert at Toronto Star 8/11/2010


    Canada’s top court described Khadr’s treatment as “. . . state conduct that violates the principles of fundamental justice.” It added: “Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel (. . .) offends the most basic Canadian standards about the treatment of detained youth suspects.”

    About violations of Khadr’s Charter rights, the Court found that: “. . . their impact on Mr. Khadr’s liberty and security continue to this day and may redound into the future.”

    Despite those prescient words, the ruling stopped short of prescribing a remedy to the federal government.

    On the face of it, the absence of Supreme Court prescriptions in the Khadr case falls short of its own, recently reaffirmed, deterrence principle. In a matter that involves state abuse of the right to liberty and security of a person in a fundamental way, that absence has ultimately tipped the scale towards virtually unfettered government discretion.

    Got to love our northern sisters and brothers, “unfettered government discretion” is used to describe being held without charges or legal counsel, then put on trial in a foreign country in front of a jury of military officers, apparently selected to have no pre conceived notions about whether your age was relevant years ago, or how the “confessions” or just witness statements were obtained –  by shooting you in the back, first, then isolating you for years in the disgrace of Bush & Cheney’s little waterboarding gulag where you no doubt heard what happened to the prisoners who didn’t cooperate– or sometimes did.

    No wonder poor Lt Col Jon Jackson might be feeling some physical stress attempting to navigate this.  Kids don’t get to select their parents.  

    “Kildeer” Gibbs and Omar Khadr Trial

    My contention is that White House Press Secretary Robert Gibbs is doing the Kildeer maneuver, like the bird who cries to draw you away from its nest,  as a distraction from what is going on with the trial of Omar Khadr, who has been held in U.S. custody as an enemy combatant for 8 years and since he was only 15 years old.

    http://en.wikipedia.org/wiki/O…

    Since Khadr was not yet of legal age when he was nearly killed then revived by the U.S. military, then used as part of Bush and Cheney’s sadistic little game to “prove” that this country needed to invade Iraq on false pretenses, it looks really awkward, not to mention immoral, to be trying the prisoner with the idea of permanent incarceration or the death penalty. (if the prosecution is to be believed, the maximum penalty in this case is life imprisonment)  Even more so that he was born in Canada.

    Hence Kildeer Gibb’s dig about not being satisfied until we had Canadian healthcare.  Obviously we have the finest healthcare in the world because we can revive almost indefinitely people who have nearly been tortured to death.

    Because I checked the usual suspects on the kick a hippie sh*t stirring list, the OFA/DNC paid campaigner and Beltway insider types, the ones who like to use the word “firebaggers,”   and they’re all ignoring this like it’s his turn.  Like they radioed in the strike coordinates to the WH @ PressSec office.

    Or they are going to actually proxy bomb Iran next.  But then I remembered the game right wing people like to play called “you’re insincere in your concerns.”

    Maybe Kildeer Gibbs could diss the Canadians’ troops next and they could pull out of Afghanistan like the Dutch did.

    http://www.aolnews.com/world/a…

    Aug 3 2010


    “This is the start,” an Afghan political analyst, Haroon Mir, told Agence France-Presse. “It’s a chain — the Dutch start to withdraw, followed by the Canadians, then the British by 2014. In the middle I think we will see a number of other NATO members… setting a timetable to leave.”

    The Dutch will be replaced by U.S. and Australian, Slovak and Singaporean soldiers.

    Canadian press, this am:

    Montreal Gazette Aug 12, 2010

    Khadr trial to hear first arguments

    http://www.montrealgazette.com…


    More than eight years after U.S. forces captured a 15-year-old Omar Khadr on an Afghan battlefield, prosecution and defence lawyers present their opening arguments today in his war crimes trial -the first such case proceeding under the Obama administration.

    Seven U.S. military officers will sit in judgment of the Canadian-born terror suspect after the military judge in the case yesterday excused eight others from the initial jury pool, acting on requests and challenges from either the defence or prosecution.

    Postmedia News has also learned that the defence has been seeking to present two Canadian government officials as defence witnesses – a request likely to rankle the Conservative government, which has resisted calls from human- rights and other activist groups calling for Khadr’s immediate repatriation.

    The officials – Sabine Nolke and Suneeta Millington – have over the years been dispatched to visit Khadr at the U.S. naval base in Guantanamo Bay, Cuba, as part of the Canadian government’s bid to monitor his confinement conditions and other aspects of his treatment.  

    Omar Khadr is so far intending on being tried in absentia because he considers the entire proceedings a sham and has fired his U.S. civilian lawyers. He has a Pentagon appointed attorney.

    Friday: Fairwell to Habeas Corpus, Greenwald on Obama’s Win on Indefinite Detention

    This is a must read review in Salon of today’s court ruling on “Boumediene vs Bush”  written by Glenn Greenwald, which gives the history of the creation of Bush’s prison gulag in 2006 with the Military Commissions Act, and background and then says:

      Congratulations to the United States and Obama for winning the power to abduct people anywhere in the world and then imprison them for as long as they want with no judicial review of any kind.  

    If you’re secretly kidnapped by, say,  a military for profit contractor and shipped off to Gitmo, the Bush DOJ contended that the detainee under Boumediene has a right to a hearing (when they get “around to it,” years later, if you survived the torture) but when you’re secretly kidnapped by Only God Knows What or Who and shipped off to Bagram’s Secret little hell holes in Afghanistan, then the non existent detainee has no rights to any such kind of hearing.  

    Greenwald:


     In other words, the detainee’s Constitutional rights depends on where the Government decides to drop them off to be encaged.  One of the first acts undertaken by the Obama DOJ that actually shocked civil libertarians was when, last February, as The New York Times put it, Obama lawyers “told a federal judge that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush’s legal team.”

    But last April, John Bates, the Bush-43-appointed, right-wing judge overseeing the case, rejected the Bush/Obama position and held that Boumediene applies to detainees picked up outside of Afghanistan and then shipped to Bagram.  

    But which Bagram are they being shipped to ?  The known Bagram Prison, or the one Gen McChrystal’s Secret Special Forces and the CIA and Blackwater Xe’s operations aren’t admitting the existence of ?  

    Bad News For The President’s Indefinite Detention Idea

    The Dog writes about law a lot, mostly because it fascinates him, the way it evolves and changes based on new information or new ways of viewing our basic Constitutional rights. One of the areas of particular concern is, of course, the torture of prisoners and the holding of them without charge or trial, whether they are designated as “enemy combatants” or not. On May 21st the President gave a policy address about the closing of Guantanamo Bay prison camp. In this speech he mentioned there were likely to be prisoners who, in his words could not be released but also could not be tried.

    Originally posted at Squarestate.net

    Namby pamby NIMBY? Vincent Van Gogh was short!

    For centuries Americans stood tall in the world.  Literally.  It would appear that the Dutch are now taller than us.  The average Dutch man is 6’1″, whereas his American counterpart is 5’9″, only one inch taller than the average Dutch woman.  Jiminy crickets: In one century they’ve had to redesign their ceilings and doorways and put extensions on the their beds!  They’re better looking and smarter!  Tall dudes make more money!  And get better chicks.  They are now using their advantage in stature to question our manliness.  Because of the situation down at Guantanamo–the fact that we’re piss-scared of giving due process to the detainees in American courts– the towering Dutch are calling us “pussies.”

    If you live outside of the US, or the US centric bubble, then the incredible stupidity of the this viewpoint is obvious.

    Where does the World Court reside? It resides in the Hague in the Netherlands. the Netherlands has a population of 16 million (that are not allowed to bear arms or such).

    The world courts deals with the worst of the worst, anything in Gitmo pails to what these folks have done.

    Let’s take those war criminals (of which dozens have been tried and sentenced) from the Balkan conflict as an example. Here is a group that still has lots of support (Serbs primarily) all across Europe. They are in cells in the Hague which is driving distance from their homeland. Not like some poor Afghan farmer totally divorced from his people, these people have strong support living with a few hours drive!! Almost nothing could stop them from attacking and trying to release there leaders (and heros), or at least taking revenge on the country they are incarcerated in. The REAL danger to this court pails to anything the perceived Gitmo people could possibly do.

    Just look at the history of the Balkan conflict, its horrible geenocide and the people who did the killing, and then grab a map to see where the two countries lie, you will get the picture. Then do the same for the Afghan conflict … Kinda makes you giggle.

    But, do you hear the good people of the Netherlands on the streets demanding these criminals leave or cowering under their beds at night? No, it just might be that not all folks in the globe are NIMBY and some have the balls to realize that freedom comes at a price, and you never know when you will have to pay up in full.

    Could it be that a small country in “old” Europe has more balls than the gun toting folk wingnuts of the US have?

     

    The Presumption of Innocence, and other Quaint Ideals

    The Presumption of Innocence, and other Quaint Ideals

    Presumption of Innocence

    (Innocent until proven guilty)

    A principle that requires the government to prove the guilt of a criminal defendant and relieves the defendant of any burden to prove his or her innocence.

    The presumption of innocence, an ancient tenet of Criminal Law, is actually a misnomer. According to the U.S. Supreme Court, the presumption of the innocence of a criminal defendant is best described as an assumption of innocence that is indulged in the absence of contrary evidence

    […]

    the presumption of innocence is essential to the criminal process. The mere mention of the phrase presumed innocent keeps judges and juries focused on the ultimate issue at hand in a criminal case: whether the prosecution has proven beyond a reasonable doubt that the defendant committed the alleged acts. The people of the United States have rejected the alternative to a presumption of innocence-a presumption of guilt-as being inquisitorial and contrary to the principles of a free society.

    http://legal-dictionary.thefre…

    New York Times Blasts Obama Appeal on Habeas at Bagram

    The Sunday editorial in the New York Times was highly critical of the recent decision of the Obama administration to appeal the D.C. Federal Appeals Court ruling allowing habeas rights to some prisoners at Bagram.

    The government furthermore asked for a stay in the proceedings of any cases under this ruling:

    In sum, the extensive harms to the Government and the public interest involved in further proceedings envisioned by the Court in these cases, and the likelihood of respondents’ success on the merits of appeal, strongly warrant a stay pending appeal.

    The NYT editorial, “The Next Guantánamo,” put it this way:

    D.C. Court: No Judicial Appeal on Torture Transfer for Uighurs, Other Gitmo “Detainees”

    Center for Constitutional Rights reports today that the U.S. Court of Appeals for the District of Columbia overruled a district court ruling, in Kiyemba et al. v. Barack Obama (PDF), that prisoners at Guantanamo must get 30 days notice of any pending transfer to another nation. The Court said that the judiciary cannot “second-guess” the Executive regarding its assertion that prisoners would not be transferred to a country that would torture them.

    According to the ruling, the decision arose from the Uighurs case, which has been much in the news in past months, as the U.S. has already said these prisoners are not “enemy combatants”, and are not being charged with any crime (even as they remain at Guantanamo, where they have been held for over seven years, many of them in windowless cells 22 hours a day). The Circuit Court notes:

    Justice For Guantanamo Prisoner: Take Action

    As explained in this diary, the Obama DOJ is delaying  habeas corpus for Mohammed Jawad, a 22-year old Afghan national captured as a teenager 6 years ago & imprisoned at Guantánamo. The Obama DOJ decided to not modify Bush’s motion to dismiss or hold in abeyance until after a military trial. Only Obama has halted all military proceedings, which may not recommence for at least 120 days.

    Jawad is a good case for Obama to start distancing himself from Bush.  There is no allegation that Jawad is a member of al-Qaeda or the Taliban, that he committed terrorism or ever had critical intelligence.  This is the “first war crimes trial against a child soldier (pdf file) in the history of the civilized world.”  Yet, a military judge has already tossed the “torture-tainted evidence against Jawad” in a case of regular criminal justice crimes, like attempted murder.  

    Obama Delays Habeas of Tortured Guantánamo Prisoner

    Last year, in Boumediene v. Bush, the US Supreme Court held that foreign prisoners at Guantánamo have a constitutional “privilege of habeas corpus to challenge the legality of their detention” promptly. Guantánamo prisoner Mohammed Jawad filed a habeas corpus petition (pdf file). The Bush DOJ filed a motion to dismiss or hold in abeyance, claiming no right to habeas until after a military commission trial. The Obama DOJ adopted the Bush pleading, and despite repeated inquiries from Jawad’s lawyers, do not wish to modify Bush’s legal arguments.  While adopting Bush’s pleadings, it appears that Obama really seeks to delay habeas proceedings until status determinations are completed before his 120-day deadline. However, even if true, the effect of Obama’s actions is a de facto granting of holding habeas in abeyance, not in deference to the now terminated military proceedings argued by Bush, but until the status determinations have been completed.

    Truth and Reconciliation Commissions

    [ed note: I’m still gagging on the R-word but here goes]

    From Wiki:

    A truth commission or truth and reconciliation commission is a commission tasked with discovering and revealing past wrongdoing by a government, in the hope of resolving conflict left over from the past. They are, under various names, occasionally set up by states emerging from periods of internal unrest, civil war, or dictatorship. South Africa’s Truth and Reconciliation Commission, established by President Nelson Mandela after apartheid, is generally considered a model of Truth Commissions, rarely if ever achieved in other parts. As government reports, they can provide proof against historical revisionism of state terrorism and other crimes and human rights abuses. Truth commissions are sometimes criticised for allowing crimes to go unpunished, and creating impunity for serious human rights abusers.

    The bolds are from the Wiki entry, the italics are mine.

    I’m not sure where to begin on this. My revenge fantasies leading up to the election were starting to get out of hand. I felt like Photoshopping middle-of-the-forehead entry wounds with trails of blood down the faces of our war criminals – traitors to not just the Constitution but to all that’s decent in humanity. And then pasting the posters on public walls. I may get rendered just for sharing this thought dream. They still have ten weeks to go. Fuck it.

    My big problem with revenge is people like Ghandi and Mandela and MLK, Jr. They all took the personal beatings, torture and imprisonments in stride. They all brought about tremendous positive change for all of humanity. They are powerful role models for doing what is right morally. If I ask myself what would they do then I have to confront my very reasonable desire for some exotic revenge for the members of the Bush regime and all their enablers. It would please me no end to have each of them waterboarded, humiliated, debased and thrown into Gitmo, Abu Ghraib and the Black Prison in Afghanistan for very long amounts of time. But that would just make me like them. I refuse to be one of their kind.

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