Holder Hearing: Stats, Shenaningans and Security Concerns

By Katie Fourmy, Human Rights First Program Assistant/Office Manager, Government Advocacy

Just days after announcing that he would move the cases of five men accused of involvement in the 9/11 attack to a regular federal court, Attorney General Eric Holder appeared yesterday before the Senate Judiciary Committee for a four-hour hearing filled with stats, shenanigans and security concerns.

Stat Wars: Senators Hatch and Kyl wanted to know just what AG Holder means by, “195 successfully prosecuted,” when he refers to accused terrorists tried in federal courts. We’ll clear it up. In our recent study of 119 terrorism cases with 289 defendants and filed since 2001 in the normal federal court system, Human Rights First found that of the 214 defendants whose cases were resolved as of June 2, 2009, 195 were convicted either by verdict or by a guilty plea. By contrast, the military commissions are a failed system that has secured only 3 convictions. So there’s the stat for you.

Shenanigans: Let’s start with decorum and avoiding shenanigans. In clearing up misinformation that had been circulating since the announcement, Mr. Holder rebutted critics who claim that a federal court trial will give KSM more of a platform to share his ideologies than would a military commission. He reminded us that bringing KSM to face trial in a federal court will require all in the courtroom, not just the defendant, to maintain proper behavior. Let’s hope this will save us the misery of listening to KSM spew all kinds of incendiary remarks… again. We don’t want to relive his first appearance in a military court.

Another shenanigan: Former New York Mayor Rudolph Giuliani. Senator Durbin brought up that in 2006, Rudy Giuliani hailed the trial of Zacarias Moussaoui in Eastern Virginia courts, just miles away from the Pentagon, as a “symbol of American justice.” Unfortunately, when AG Holder authorizes a federal trial of a 9/11 suspect, Mr. Giuliani steps out as one of the key opponents to the trial. For a more tongue-in-cheek version of his flip-flopping, check out the Daily Show from Monday night:

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Security Concerns: Thankfully, the fearmongering was nearly absent from yesterday’s hearing. It’s about time. I think it’s clear to most now that bringing these suspected terrorists to justice in United States federal courts will not put our citizens in great danger. In fact, it makes us safer. Thirty-two military leaders back AG Holder’s decision, and they remind us that keeping Gitmo open and continuing the system as is only puts us and our armed forces in great danger as we engender more hate and fear.

I’ll end with what I found to be the AG’s most resounding point of the day. When Senator Kyl asked Holder why he thinks that a federal court is the best location for this trial when KSM has already stated that he wants to plead guilty in a military commission and be sentenced to death, Holder’s response was simple. AG Holder’s decisions have nothing to do with KSM and his whims of trial location. “He [KSM] will not select his prosecution venue. I will select it,” asserted the Attorney General.

Next goal: Closing Guantánamo and transferring detainees suspected of crimes for trial before tried and true civilian courts in the United States.

If You Believe Guantanamo Makes Us Safer You Should Have Been Here Today

By David Danzig, Deputy Program Director of Human Rights First

Cross-posted from Huffington Post

Guantanamo Bay, Cuba, 11/18/09 - Legal proceedings, such as they are, rumbled to life again today at Guantanamo Bay. Pre-trial issues in the case of Mohammed Kamin, an Afghan man who was captured by the U.S. in Afghanistan in 2003, were heard in a military commission courtroom on a small hill a few miles away from where the more than 200 detainees left at Guantanamo are housed.

The proceedings were a non-event before they even took place, unattended by even a single journalist and unremarked upon by political elites, many of whom spent the week arguing about whether military commissions or federal courts were the appropriate venue for trying alleged terrorists.

Soon after the proceedings were gaveled to order, President Obama, speaking to FOX News in Beijing, said that the detention facility at Guantanamo would not close in January.
"I knew this was going to be hard," the President said referring to an executive order he signed on January 22 ordering the detention facility to be shut within a year but "technical issues" as well as "politics" got in the way of closing the facility. He stated that he anticipates the facility will be closed at some point next year.

Many of the President's political opponents have taken to the airwaves this week to laud the use of military commissions as the only sure-fire way to provide justice for those who are accused of terrorism.

Meanwhile back at the commission proceedings, it was business as usual - meaning that the judge spent more than two hours covering legal issues that have virtually no precedent in military commissions. But despite the hard work, it was hard to say that justice in Kamin's case was any closer at hand.

Commission proceedings, since their inception, have been hampered by confusion about the rules, a lack of transparency, and other procedural hurdles. Today was no exception.

Trying a Man No One Has Heard Of

Mohammed Kamin is, in the words of his defense attorney, "someone who almost no one in the western world has ever heard of."

When Attorney General Eric Holder announced on Friday that the five men charged with conspiring to plan the 9/11 attacks would be moved to federal court, there was no mention of what would be done with Kamin.

It was unclear how - if at all - a Department of Justice-led review of detainees held at Guantanamo might impact the case against Kamin. No one had bothered to tell his lawyer.
"The fact that we are standing here in this courtroom today suggests that we are going to proceed to military commissions," Navy Lt. Cmdr. Richard Federico, the military attorney charged with defending the Afghan detainee, said uncertainly at the beginning of the proceedings today. "That would be my assumption too," chipped in Judge Thomas Cumbie.

There is a making-it-up-as-we-go feel to these proceedings which is inevitable for a system of trials for which the Congress, courts and executive keep changing the rules. For example, there was discussion today of a new pre-trial hearing date in December in the Kamin case.

But officials said that the new rules for the military commission proceedings - which the Department of Defense needs to alter to conform with reforms passed by Congress on October 29 - have yet to be released by the Department of Defense. Officials with the Office of Military Commissions at Guantanamo acknowledged today that they have not even seen a draft set of the new rules.

Any rulings issued in connection with today's hearing or in the court's next hearing on this case (scheduled "on or around" December 16) may have to be re-litigated when the new rules are released, further delaying a date when the Kamin case might reach a verdict. Kamin has been held for more than six years without any meaningful judicial review.Other problems unfolded as the hearing moved into its second hour.

Basic discovery information has yet to be passed on to the defense. For example, the defense told the court today that they still have yet to receive many of the accused's statements.
The prosecution, more than 1.5 years into formal legal proceedings against Kamin, recently provided an interrogation log which shows that he has been interrogated 17 times, yet summaries and/or transcripts of what was said at those meetings have only been provided to the defense for four sessions. "This is elemental stuff," Federico told the court.

Two Guys Not on Google

Captain Clay West, who acts as co-defense counsel, raised yet another thorny issue: two Afghan men who initially interrogated Kamin can not be found by the U.S. government for questioning. West suggested that these men, who were on the U.S. payroll, may have "softened up" Kamin and they ought to be questioned by investigators to determine what role any abuse may have played in subsequent statements.

Government prosecutors shot back that they were doing everything they could to find the two men. "Its not like we can put their names in Google," said Air Force Captain Jeremy McKissack, a prosecutor. Judge Cumbie suggested that so much time had passed since Kamin was captured, "they might be dead."

"The government has worked five years to charge this case," West said. "The government should suffer for not trying this case sooner, not Mr. Kamin."

There were other questions too. After all, as Federico explained, it was his "ethical responsibility" to pursue every avenue he can to defend his client.

Is material support for terrorism, the charge under which Kamin is to be tried, a charge that will stand up under appeal? Federico told the judge that, in his opinion, it probably would not - even the Attorney General's office expressed similar doubts before the latest Military Commissions Act became law - and argued that he ought to be able to make his case to the "convening authority" who has the power to choose who to prosecute.

Providing "support" for terrorism, as opposed to actually committing terrorism, has not traditionally been considered a violation of the laws of war, Federico argued, and it would be a waste of resources to try a case that is likely to be overturned. The judge promised to consider the motion.

It didn't stop there.

What should be done about a system that was designed - according to rule - to try "enemy combatants" when a new administration now calls detainees like Kamin "unprivileged belligerents?" Federico says this is not accounted for in the rules. Are changes necessary? Federico says that this alone is enough to dismiss the case.

And on and on. All of these issues have to be litigated. Memos have to be written. Motions filed. Hearings convened.

Almost every issue breaks new ground. Kamin elected not to attend this hearing. He has skipped every pretrial motion. The judge warned that there may come a time when it is necessary to "forcibly extract" him from his cell and make him attend hearings. But it is not clear when that time will come. Or who will decide. More memos. More unchartered territory.

This is the state of play with a military commission system that was put in place in 2006 and overhauled just a few weeks ago. New rules are being put in place while detainees are being tried. Changes are inevitable and as the clock continues to run, it becomes harder and harder to convene a trial that is seen to be timely and fair.

This is what it takes to build a legal record and develop a complex legal system. It's fascinating for lawyers to watch. But it is not the way a sophisticated country should be managing justice.
There is another option.

Thankfully the federal judicial courts are already prepared to handle the most complex terrorism cases. Since 9/11 the federal system has reached a verdict on 195 cases, finding more than 90 percent of alleged terrorists guilty.

For those of us who have seen the Guantanamo system of military commissions operate, it is hard to believe that any politician would argue that what we have here is what we need. Especially when a system of justice, with a proven track record, stands by, ready to do the job.

Congress Trying to Put Up a Roadblock on the Path to GITMO's Closure

Not a week after the Attorney General announced that suspected 9/11 perpetrators will face justice in New York federal courts, House Republicans are aiming to block these trials, and are trying to make their case as Mr. Holder appears in a hearing before the Senate Judiciary Committee.

We need to push through these obstacles and stay on course! Yesterday, we had a big victory in the Senate when Senators blocked an effort, to restrict criminal prosecutions of suspected terrorists. Momentum is on our side - but we have to keep up the pressure!

Call your representative today to let him or her know you support using our federal courts for terrorism trials. Click here to find the number of your representative's office and to read more.

Panel Discussion on Guantanamo, with three retired military leaders and Human Rights First

On Thursday, November 18, Human Rights First will be leading a discussion on how best to restore America’s global reputation and keep the United States safe in a post-Guantánamo Bay world. The panel is free and open to the public – we’d love to have you there!


Co-Hosted by Human Rights First and the Human Security Law Program at William & Mary Law School in Williamsburg, Virginia, the panel will feature three of the country’s most distinguished retired military leaders. The panelists are among the retired military officers who stood behind President Obama on his second day in office as he signed the Executive Orders banning torture and ordering the closure of the Guantanamo detention facility by January 2010.
Read the media advisory for details.

Victory for the Rule of Law: an analysis of decision to move 9/11 defendants to federal courts

By Human Rights First Senior Associate Sahr MuhammedAlly, cross-posted from Foreign Policy's AfPak blog:

The Obama administration's decision to move the trials of the five Guantanamo detainees accused in the 9/11 conspiracy -- including Khalid Sheikh Mohammed -- from the discredited Guantanamo military commissions and into federal civilian courts to face justice is a victory for the rule of law. Eight years later, the United States is finally bringing justice to the victims of the 9/11 attacks in a forum that is legitimate and credible. But the Justice Department should go further and try all detainees at Guantanamo in federal civilian courts, not military commissions.
I have observed several military commission hearings in Guantanamo including the arraignment of the 9/11 defendants in June 2008. What I saw in every hearing was a second-class system of justice that made up rules as it went along, used unfair evidentiary standards for defendants, and subjected some detainees to ill-treatment and abuse. At the June 5th arraignment of the September 11 defendants I recall thinking that should trial in the military commissions system continue, the American justice system will be as much on trial as the defendants' alleged crimes. But with the announcement that the cases will be transferred to federal courts, the government has recognized the need to shift the focus from the legitimacy of the judicial process to the validity of the actual accusations against the detainees.

Federal courts have a long and impressive track record of prosecuting complex terrorism cases while upholding due process and protecting national security. In a comprehensive study of 119 terrorism cases with 289 defendants, Human Rights First found that of the 214 defendants whose cases were resolved as of June 2, 2009, 195 were convicted either by verdict or by a guilty plea. By contrast, only three have been convicted in the broken military commissions. (For the full reports, see In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Court (2008) and In Pursuit of Justice Update (2009)).

Although the cases of Khalid Sheikh Mohammed, Ramzi Binalshibh, Waleed bin Attash, Mustafa Ahmad al-Hawsawi, and Ali Abd al-Aziz Ali will be tried in federal courts, the administration is still pursuing prosecution of a number of individuals via military commissions, including the suspected planner of the USS Cole bombing in Yemen in 2000, Abd al-Rahim al-Nashiri. And though new reforms to the military commissions include some improvements over previous laws, they still fail to provide many of the fundamental elements of a fair trial. For instance, military commissions continue to permit the admission of coerced testimony obtained at the point of capture; they use an overly broad definition of who can be tried before military commissions that includes juveniles and those not accused of engagement in hostilities; and they permit defendants to be tried ex post facto for conduct not considered a war crime at the time it was committed. Military commissions thus retain the possibility of unfairness and their continued use perpetuates the damaged legacy of Guantanamo.

The Justice Department made the right decision to transfer the cases of the 9/11 attacks to New York courts for prosecution. But by dividing detainees into different categories --those able to be tried in federal courts and those who will face military commissions -- the administration is sending a message that there is not enough evidence to try some detainees in federal courts and that those detainees deserve a second class system of justice that cuts corners. All Guantanamo detainee cases should be tried in federal courts. Only by pursuing this route can the United States return to a system of justice that upholds American values and laws and makes a clean break from the shameful era of Guantanamo.

Debate on Trying Terrorists

Jim Benjamin, one of the co-authors of Human Rights First's In Pursuit of Justice reports, participated in a debate on the best way to try terrorist suspects, in the New York Times' Room for Debate.

He draws on his research to underline the excellent track record of federal courts:

I recently co-authored a study of the experience of federal courts in
adjudicating terrorism cases. The data we collected shows that federal-court
terrorism prosecutions have generally yielded just, reliable outcomes that have
not undermined our national security.

The list of convictions includes not only the trial of Omar Abdel Rahman in
1995, but also of Ramzi Yousef, Zacarias Moussaoui, Jose Padilla, John Walker
Lindh and Richard Reid, to name just a few. Not all cases have been perfect, but
the outcomes, by and large, have been accepted around the world and have
consigned the convicted terrorists to spend many decades or the rest of their
lives in the obscurity of federal prison.

On courts, as a proven system vs. new legal structures:

One of the great strengths of the federal courts as a venue for prosecuting
terrorists is that they have actually worked, as evidenced by the long list of
successful terrorism prosecutions over the past 20 years.

By contrast, proposals to create a new national security court raise
practical and legal questions and offer, for the foreseeable future, the
prospect of constitutional uncertainty and legal wrangling. The prior
administration tried and failed to create novel legal structures to handle
terrorism cases.

Read the whole debate, including the Glenn Sulmasy's perspective.

The Tide is Turning in the Fight to Close Guantanamo

By Human Rights First's Sharon Kelly, cross-posted from Huffington Post:

Yesterday, a heated debate took place on the Senate floor over an amendment proposed by Senator Lindsey Graham that would have prevented the 9/11 defendants from facing justice in U.S. federal courts. It did not pass. In a major victory for our campaign to close Guantanamo (link) the Senate rejected this attempt to derail Guantanamo’s closure and prevent the United States from rebuilding our reputation.

The voices of dozens of retired military leaders, experienced prosecutors, correctional officers, and committed activists who all want to see Guantanamo swiftly closed – and understand that our institutions are up to the job of dealing with terrorist suspects -- is starting to break through and be heard by Congress. As we await the announcement of President Obama’s plan to close Guantanamo, we can be hopeful that the tide of fear-mongering that has muddied this debate is being to ebb.

Victories like this take work. Last night on the Senate floor, Senator Patrick Leahy pointed to the bipartisan declaration signed by 120 prominent Americans including former Members of Congress, high-ranking military officials and judges, that Human Rights First partnered with the Constitution Project to organize. As today’s Wall Street Journal noted, “Hours after the petition’s release, the Senate rejected an amendment that would have barred prosecuting Guantanamo inmates in federal court.”

Also yesterday, Human Rights First travelled to Michigan where a debate has been underway over whether Guantanamo detainees will be sent to the Standish prison facility. Two retired military leaders who travelled there with us had their message of support for closing Guantanamo appear in an op-ed published in the Detroit Free Press. Most importantly, this victory took the help of people all across the country. Within hours of sounding the alarm, thousands took action, sending messages to their Senators letting them know that they opposed this destructive amendment.

Join us in this important effort to make sure Guantanamo is closed. You can sign up to help and stay informed on our website and on Facebook.

Courts, not Military Commissions, for Guantanamo Detainees

Andy Worthington refers to Human Rights First's In Pursuit of Justice reports in an article in Truthout about military commissions today, reminding:

As Lawyers at Human Rights First have been explaining for many years - most recently in an update to their report, "In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Court" - in the last 20 years, federal courts have handled approximately 135 real-life terrorism prosecutions, and have secured convictions in over 90 percent of those cases. When the updated report was issued in July, Elisa Massimino, Human Rights First's chief executive officer, explained, "Politicians have spent eight years trying to reinvent the wheel when it comes to prosecuting terrorism and that approach has failed miserably. This report makes clear that the best way forward is to rely on our existing legal system. Its track record of successfully prosecuting criminals, safeguarding national security, and addressing the complex legal issues of our time is unmatched."

Read the whole article here, and join our Guantanamo campaign if you want to make sure the prison is closed on time!

Human Rights First Gives Obama a B, overall, in Foreign Policy

Human Rights First's Communications Director Sharon Kelly contributed to a Foreign Policy piece that collected grades for President Obama's performance over a range of issues. Below is her excerpt from the article.

Grade: B

On interrogation policy: A.

President Barack Obama took swift and decisive action by shutting down the CIA's "enhanced interrogation" program and mothballing secret prisons on his second full day in office. In August, his Task Force on Interrogations seconded that strong step by deciding that the Army interrogation manual should be the single standard for all agencies of the U.S. government.
These actions allowed the United Sates to begin to rebuild the respect that is so essential to successfully meeting the complex challenges that we as a nation face. Achieving energy security, protecting the environment, combating global terrorism, quelling insurgencies in Afghanistan and Iraq -- these are all issues that require collaboration with allies and a strategy to win goodwill around the world. As Gen. Charles Krulak and Gen. Joseph Hoar -- commandant of the Marine Corps from 1995 to 1999 and commander-in-chief of U.S. Central Command from 1991 to 1994, respectively -- recently wrote: "If Americans torture and it comes to light -- as it inevitably will -- it embitters and alienates the very people we need most."

An A on interrogation is important for the whole report card.

On Guantánamo: B or incomplete.

Obama was off to a strong start when he announced last January that Guantánamo Bay's prison would close within a year. The administration has less than three months to go and Members of Congress and the public are still anxiously awaiting a plan specifying what will happen to the detainees housed there.

In its defense, the administration inherited a real mess and has since confronted a concerted campaign of fear mongering led by former Vice President Dick Cheney. In the face of real logistical issues and made-up scare tactics, Obama's recent comments at the United Nations reaffirming his commitment to swiftly close the facility were encouraging.

There's no reason for delay. Former Secretary of State Colin Powell, Gen. David Petraeus, and other experts have stated that Guantánamo's existence has undermined our national security interests. The most comprehensive study of terrorism cases prosecuted in U.S. courts demonstrates that our justice system is up to the job of prosecuting these complex cases -- at least 195 terrorists have been convicted since the September 11 attacks. The American Correctional Association has declared that Americans have nothing to fear from terrorists incarcerated in U.S. prisons.

If the administration's plan puts faith in our strong institutions, this grade could be raised to an A. Opting for unlimited detention without charge would undermine the progress made so far.

On Afghanistan: B- or incomplete.

More needs to be done to guarantee that -- when United States forces pick up someone in Afghanistan and detain him as a possible security threat -- there are mechanisms in place to challenge that detention. Until this happens, U.S. detention policies will be at odds with its counterinsurgency goals in Afghanistan: we'll be spending money on schools and roads to win over the population and then undermining our investment by holding people unfairly.

The Obama administration has made some improvements. In September, the Pentagon announced new procedures for the 600 detainees being held in Bagram and Gen. Stanley McChrystal unveiled reforms for both U.S. and Afghan prisons that focus on rehabilitation and skills training aimed at preventing the radicalization of prisoners. He announced that the "desired endstate" for all detention operations -- including Bagram -- would be the transfer of those responsibilities to the Afghan government once it has the capacity to run these systems in accordance with international and national law.

The devil is in the details. Even under the new procedures, which are similar to the discredited combatant status review tribunals in Guantánamo, there are concerns about detainees' ability to review and challenge the evidence against them and produce their own evidence, including witnesses, without the assistance of legal representation. Ultimately, it remains to be seen whether the reforms will resolve the underlying problems of arbitrary and indefinite detention. More can be done to prevent mistaken captures, gather evidence during capture (to promote fair criminal prosecutions in Afghan courts) and increase the capacity of the Afghan authorities to take responsibility for detention and prosecution.

The Defense Authorization Act, and Military Commissions vs. Federal Courts

A Washington Independent article discussing the consequences of the Defense Authorization Act passed Wednesday, and the continued use of military commissions. It rightly compares the track record of our federal courts vs. military commissions, in prosecuting terrorism cases, citing Human Rights First In Pursuit of Justice reports:

A study conducted by former prosecutors for Human Rights First, for example, found that civilian federal courts had successfully prosecuted more than 214 terrorism cases since September 11, 2001. Prosecutors won 195 convictions, and successfully handled the challenges of unavailable witnesses, classified evidence, undercover informants and other complexities that arise in terrorism cases, the report found. By contrast, the military commissions created by President Bush after the 9/11 attacks and subsequently authorized by Congress tried only three cases.

We should use our federal courts. Join our Guantanamo campaign to get more involved.

Advances on Guantánamo

Two advances on Guantánamo this week:

• Despite intensive fear mongering on Capitol Hill, the Senate passed a homeland security appropriations conference report this week that, although it places some restrictions on transfers, allows for transfers for trial in U.S. civilian courts. The President is expected to sign the bill soon.
• The U.S. Supreme Court agreed to review the case of the Chinese Uighur detainees who cannot be repatriated to China because of the risk of torture or other abuse, and who the Defense Department concedes do not pose a threat to the United States.

Although these are important steps forward, the battle is far from won - there are still restrictions in the bill, and some lawmakers continue to put up roadblocks to trying terrorists in the U.S. civilian justice system. For example, last week, Senator Lindsey Graham introduced an amendment on a bill that would prohibit funding trials of alleged 9/11 conspirators in U.S. courts.

Senator Graham's amendment is at odds with the recommendations of senior retired military leaders who advise that the use of civilian courts to try the 9/11 alleged conspirators is in the best interest of U.S. national security. Click here to read a letter to President Obama from four retired military leaders, admirals and generals, urging him to seek prosecutions in civilian courts.

Write your representatives to let them know that you support closing Guantánamo - they need to know that public support is behind it!

Mukasey is Wrong: Op-ed in Wall Street Journal ignores the facts

In an op-ed published in the Wall Street Journal today, Former Attorney General Michael Mukasey argues that federal courts are not the place to try terrorist suspects.

Thing is, Human Rights First has published two in-depth studies - In Pursuit of Justice - of the federal courts' history in trying terrorism cases, and the facts are that our courts can handle these cases. Read more.

Legal Analysis of al Mutairi's release, on Jurist

Check out International Legal Director Gabor Rona's analysis of the release of Guantanamo detainee al Mutairi - a "welcome blow to government detention power." Cross-posted from Jurist:

On October 9, the Department of Justice announced the transfer of Guantanamo detainee Khalid Abdullah Mishal al Mutairi, to his home state, Kuwait. "On July 29, 2009, a federal court ruled that al Mutairi may no longer be detained under the Authorization for the Use of Military Force (AUMF) and ordered the government to release him from detention at Guantanamo Bay," said the Department of Justice press release.

"May no longer be detained" is disingenuous spin, consistent with the Bush administration's Defense Department's traditional and casual insistence that those found to have been wrongly detained are "no longer enemy combatants." What Judge Kollar-Kotelly found was that "there is nothing in the record beyond speculation that Al Mutairi did, in fact, train or otherwise become a part of (al Wafa or al Qaida)." But perhaps the most ominous (for the government, that is) part of the ruling was her rejection of the government's expansive theory of detention powers. She wrote:

The Court agrees that the President has the authority to detain individuals who
are "part of" the Taliban, Al Qaeda or associated enemy forces, but rejects the
Government's definition insofar as it asserts the authority to detain
individuals who only "substantially supported" enemy forces or who have
"directly supported hostilities" in aid of enemy forces. While evidence of such
support is undoubtedly probative of whether an individual is part of an enemy
force, it may not by itself provide the grounds for detention.

The Supreme Court in Boumediene did not assign a detention standard to the habeas cases brought by Guantanamo detainees. District Judges have had to pave their own way. But if anything like Judge Kollar-Kotelly's vision sticks, the government can expect to continue to lose many more habeas claims than it wins.

Al Mutairi is not the intractable case. He was returned to his country of origin. But his case does suggest several insights into what the United States must do to dispose of the remaining 200 or so Guantanamo detainees, many of whom cannot be repatriated due to non-refoulement obligations, and to solve the problem of bringing the suspected criminals among them to justice.

I use the term dispose, with all its distasteful implications, purposefully. Innocent Guantanamo detainees are the bastard offspring of America's "war on terror." They pay a price not for what they did, but for our desire to bury the injustices to which we have relentlessly subjected them. Guilty detainees evoke less sympathy, but the rights to fair trial and freedom from arbitrary detention do not discriminate between innocent and guilty, except in the Bizarro world of those who first label a man a terrorist and therefore determine that he's not entitled to the same judicial guarantees as we accord suspected child rapists and serial killers, in order to determine if he is, indeed, a terrorist.

As to both innocent detainees deserving of resettlement and those rightly suspected of crimes for which they should be tried, the administration's noble and rational task of emptying Guantanamo could benefit from more responsible reporting by mainstream media and more displays of courage by our elected officials.

The Toronto Star reported on October 11 that an unnamed US official found it "puzzling" for Canada to publically reject the notion of accepting any Guantanamo detainees. Although Canada's reticence to consider accepting even its own national, Omar Kahdr, is irresponsible as well as puzzling, what is even more striking is the expectation of American officials that other countries should take detainees cleared for release while the US refuses to accept any. Of course, other countries' leaders may not be facing the amount of political baggage heaped upon the Obama administration by the domestic fear-mongering lobby. Even as to "cleared" detainees, such as al Mutairi, the notion of "worst of the worst" dies hard when opponents of the administration's plans to close Guantanamo still refer to all the detainees as "terrorists" (or worse yet, "the terrorists"). But there is overwhelming evidence that many of the detainees are not terrorists; that instead, they are the victims of arbitrary detention. This notion began to take root after Prof. Mark Denbeaux of Seton Hall Law School released his first study of the detainee population in February 2006, which suggested that the majority of detentions were supported neither by evidence of membership in al Qaida or the Taliban, nor by evidence of hostile acts against US or coalition forces. More recently, the government's pitiful won/lost record to date in habeas cases (8/30) mirrors Denbeaux's findings. All this suggests there must be some explanation for US reluctance to accept detainees other than that they are the "worst of the worst." One possibility, as mentioned, is that we do not want the living proof of our misconduct in our midst.

Another possibility is that the press is not meeting its obligation to inject truth into a debate being hijacked by fear mongers. While the mainstream media dutifully report the resistance to bringing any detainees to US soil – even suspected criminals for trial, let alone exonerated ones for resettlement – the fact that so many have been wrongly deprived of liberty from the get go remains comparatively unreported. More specifically, the rightful scorn with which habeas judges have reacted to the paltry evidence offered by the government in so many cases is little noted, except in the blogosphere. And while retired military leaders, whose efforts have been organized by Human Rights First, have received some ink for their advocacy in support of Guantanamo's closure, it has mostly been in the context of transferring those suspected of crimes to continued detention for trial in the United States, proper.

Yet another factor is the cold calculation no doubt made by many in elected office that rectitude is politically too risky. The President's Detention Task Force, in its Preliminary Report of July 20, 2009 expressed its preference for a presumption in favor of federal court trials, rather than military commissions. But on the tender question of the moral obligation to resettle innocent detainees in the United States, the administration has been less vocal, particularly after the craven backlash that began and continues in Congress about the dangers of bringing "the terrorists" into "your backyard."

How disappointing that the administration did not conduct a stronger full court press for resettlement of the Uighurs in Washington, D.C., where a Uighur community exists and had extended a willing hand. Had President Obama and others spoken more forcefully of our moral obligation to solve the problem we created, many things might now be different. Perhaps other countries would have more willingly stepped up to the plate for other detainees. The "keep Gitmo alive" lobby could have better been confronted by the human face of its erroneous and unjust assumptions. The notion that Guantanamo detainees are all, somehow, less deserving of a fair shake than our home-grown "worst of the worst" would be unmarketable. And thus, resistance to bringing the accused 9/11 co-conspirators to US soil for trial in federal courts would diminish, thereby lessening the felt need to continue operating our kangaroo-court system of military commissions. And we might not now have so many misguided souls in Congress oblivious to both the systemic failure of military commissions (3 convictions, only one of which was in a contested trial) and the nearly 200 individuals tried for terrorism offenses in our federal courts during the last decade, and expressing their resolve that military commissions are more appropriate than federal courts. Also, there would be one less category of individual to put in the "can't try 'em, but can't release 'em" basket.

Most of all, we might now have been looking at a date more certain for the end of Guantanamo as a lightning rod for anti-Americanism and for the beginning of America's trek back to its previous position of authority as an advocate for human rights worldwide.

Maybe it's too late to mount a successful campaign to resettle in the United States those innocent detainees who cannot be repatriated. But it's not too late for the administration to stop defending indefensible positions on detention authority and for the mainstream media come clean as it has not done to date with the American people, and thereby the world, about the human cost of the unlawful, unjust and counterproductive adventure that was, and is, Guantanamo."

Live from Guantanamo Military Commissions: Khadr Case Goes Nowhere (Again)

HRF's David Danzig is in Guantanamo Bay monitoring the trial of Omar Khadr. Check out his piece on the Huffington Post today:

Khadr Case Goes Nowhere at Gitmo (Again)
by David Danzig

Choosing a Court

More than seven years after U.S. forces picked up a 15-year-old boy in a remote Afghan town and accused him of throwing a grenade at a U.S. soldier, the U.S. government appears to be on the verge of deciding where to give him his day in court.

The boy, Omar Khadr – now a 23-year-old man with a full beard – looked on passively from his seat in Military Courtroom 2 at Guantanamo Bay this morning, as Navy Captain John Murphy, the chief prosecutor, told the court that the Department of Justice was reviewing Khadr’s case and expected to make a “forum decision” by November 16.

Later at a press conference, Murphy said that the Department of Justice had referred 40 military commission cases to federal prosecutors for their review in case the administration decided to pursue the cases in federal courts. If Khadr’s case is transferred to federal court, it would be heard in the District of Columbia, he said.

Defense attorneys Barry Coburn and Kobie Flowers appeared for the first time on behalf of Khadr today. The attorneys, both of whom previously served as federal prosecutors, say that they are “effectively at the beginning” of digesting the complex details of the case. Prior to actually trying the case in either a military commission or a federal court, they would need to visit “the alleged crime scene” in Afghanistan and develop their arguments after wading through thousands of pages of dense legal documents, they said.

The defense attorneys refused to give a time table for this process, though experts said that it could take them as long as 6 months to a year.

And so another hearing on Khadr’s status ended with no discernible progress. After the hearing, defense attorneys, court observers and journalists prepared to climb aboard a military transport plane back to the mainland. And Khadr, who celebrated his 23rd birthday at Guantanamo on September 19, went back to the detention facility.

The Defense Attorney Shuffle

Navy Lieutenant Commander William Kuebler, who had served as Khadr’s military defense attorney since early 2007, was officially dismissed from the case this morning.

After confirming that Khadr no longer wanted Kuebler, a uniformed, military lawyer, to represent him, the judge gave Kuebler permission to exit the courtroom, ending more than two years of work on the case.

Longtime commission-watchers said they believed that Coburn and Flowers are the 10th and 11th attorneys to represent Khadr.

In her book, “Guantanamo’s Child: the Untold Story of Omar Khadr,” Michelle Shephard writes that detainees have control over so little in their lives that choosing their own counsel may be the only chance they get to exercise their will.

It is now up to Coburn and Flowers to try to extricate Khadr from the legal anarchy that has forced him to serve more than 7 years in detention without any meaningful judicial review.

As the Toronto Star wrote on June 5, 2007, “Releasing [Khadr] into Canadian custody, with a bond to keep the peace, should not outrage America’s sense of justice, cheapen Sgt. Speer’s death or bring the law into disrepute. What it would do is put an end to a travesty of justice.”

Can I Take a Peek at What You Wrote?

Another window into the strange, make-it-up-as-you-go-along military commission system was provided during the 30-minute hearing on Omar Khadr’s case this morning.

Defense Attorney Coburn told the court he was concerned about the detention facility’s practice of “scanning” the notes that a detainee records on paper while speaking to his attorneys.

Navy Captain John Murphy, the lead prosecutor, told the court it was standard practice for the guards to “peruse” written material after a detainee spoke with his attorneys “for force protection.” The “quick scan” is intended to see if the detainee has written “a specific threat” against a guard, for example, Murphy said.

Coburn told the court that he believed this violated “attorney-client” privilege and notified the judge that it might be an issue he would explore in later hearings. The judge then asked Coburn to detail “his experience” in federal maximum security prisons with regard to detainees’ notes. “Notes like that are usually kept in the cell with an inmate and are protected by the [attorney-client] privilege,” Coburn said.

The incident, which ended with all the parties agreeing to work together to resolve it in an amicable way, was a small reminder of how “green” this process is.

Even more than seven years after the detention facility at Guantanamo was opened, it is not clear how far basic protections like attorney-client privilege extend. And the military system, unlike the federal courts, has precious little comparable experience to fall back on. As a result, every issue – however small – must be openly debated and new precedent must be hammered out. Meanwhile the years are passing and the chances that justice will be served in a timely fashion (a key legal protection in federal and military courts) seem ever-more remote.

Video of Guantanamo event in Washington D.C. with Retired Military Leaders

Watch the video of our event last week in Washington D.C. on C-SPAN.

Retired military leaders joined Human Rights First's CEO Elisa Massimino stressing that it is in our national security interests to close the Guantanamo Bay detainee facility and denounced the heated rhetoric and scare tactics that have shaped the debate in recent weeks.

Retired Military Leaders Support Accountability for Torture

Human Rights First's retired military coalition was cited in an L.A. Times column this weekend on Attorney General Eric Holder's decision to review CIA interrogations. After last week's meetings in Capitol Hill focused on the need to close Guantanamo, they are now also stressing the need for accountability for torture:

Their arguments are straightforward: The rule of law should apply even in a
war against lawless terrorists, and the CIA should be held to the same standard
of accountability as the soldiers who were tried for what they did at Abu
Ghraib.

"I'm amazed at my former colleagues in the intelligence community who think
[Holder's decision] is a terrible thing," said retired Army Lt. Gen. Harry E.
Soyster, former chief of the Defense Intelligence Agency. "If accountability is
going to discourage CIA officers from doing their jobs, then we have the wrong
culture."

"In the military, we're told to follow the rules," Taguba said. "We expect
that our civilian leaders will do the same."

Human Rights First organized the meeting with Holder last week, as well as meetings with media and a public event as part of our Protecting America Post-Guantanamo campaign, which is also cited in the article:

In a campaign organized by Human Rights First, a nonpartisan human rights group,
the generals and admirals are pressing the administration to close the
Guantanamo facility on schedule, give its inmates civilian trials and -- until
then -- to house them in American prisons.

Join our campaign to close Guantanamo!

Retired Military Leaders Speak Out in Favor of Guantanamo Closure in meetings organized by Human Rights First

Yesterday Human Rights First organized a panel on Capitol Hill with retired military leaders to discuss the national security interests of closing the detention facility at Guantanamo Bay. They also met with Attorney General Eric Holder to oppose a system of prolonged detention.

Amidst the din of dissenting voices from media, lawmakers, and the public, these retired admirals and generals said loud and clear that they support President Obama's decision to close Guantanamo, encouraging "responsible leadership" and denouncing "the politics of fear" around the issue. These meetings are part of Human Rights First's broader campaign to ensure Guantanamo is closed. Read more about our Protecting America Post-Guantanamo campaign.

The event and meeting was covered widely in the press. A roundup of stories includes the Washington Post, the Wall Street Journal, the Washington Independent, Reuters, Washington Times, a second Washington Independent article.

The military leaders also pushed back on the Dick and Liz Cheney's scaremongering and "nonsense" arguments, as reported in Politico, and echoed in the Huffington Post and Weekly Standard.

Panel Discussion on Guantanamo, with four retired military leaders and Human Rights First

“Protecting America Post-Guantanamo”

Please join us for a panel discussion with four
of the nation’s most knowledgeable retired military leaders

Tuesday, September 29, 2009
2:30 – 3:30 pm
U.S. Capitol Visitor’s Center, Room SVC 210

Fed up with the spread of misinformation and disinformation
by those opposed to closing the U.S. detention facility at Guantanamo,
four prominent retired military leaders set the record straight.

Panelists

General David M. Maddox, USA (Ret.)
Former Commander in Chief, US Army in Europe

Lieutenant General Harry E. Soyster, USA (Ret.)
Former Director, Defense Intelligence Agency

Rear Admiral John D. Hutson, JAGC, USN (Ret.)
Former Judge Advocate General, US Navy

Major General William L. Nash, USA (Ret.)
Former Commander, US Army’s First Armored Division,
and of Task Force Eagle, Bosnia-Herzegovina

Moderator
Elisa Massimino, CEO and Executive Director, Human Rights First

Please RSVP to FourmyK@humanrightsfirst.org

Read more in our press advisory

Not with a bang, but with a whimper: Another day in the life of Guantanamo Military Commissions

By Gabor RonaInternational Legal DirectorHuman Rights First
Cross-posted from Huffington Post

THE END IS NEAR! Or maybe it isn't.

In the second and final Guantanamo military commission proceeding scheduled this week, the government requested, and was granted, yet another delay, this time 60 days. This makes a grand total of ten months' delay at the government's request since charges of material support for terrorism and conspiracy were sworn against Ahmed Mohammed Ahmed Haza al Darbi about twenty months ago. The purpose of the delay, as in the case of the alleged 9/11 co-conspirators' case earlier this week, was for the Obama administration to decide whether it wished to proceed with the military commission prosecution of Mr. al Darbi, or not.

Judge James L. Pohl did not let the government off lightly. Although he granted the request, he also did not fail to take note that the government was seeking its third delay in connection with events that occurred nine years ago concerning a man in custody for the last seven of those nine years. He noted that all this takes place in a context in which the administration, itself, had stressed the interest of all concerned in a "prompt disposition." And he finally even apologized for using the word "efficient," as in 'what would be the most efficient course at this point.'

Defense counsel Ramzi Kassem had argued for dismissal rather than delay, noting that with the revisions to the Military Commissions Act (MCA) being considered by Congress, the case would pretty much have to start from scratch once a new law comes into effect. And that's assuming the administration decides to keep Mr. al Darbi's case in a military commission. Unlikely, suggested Kassem, in light of the fact that almost all the evidence against his client consists of his own statements made under torture and lesser forms of duress, which the present law might allow in evidence, but which will likely be inadmissible under the revised MCA.

A further discussion between the judge and defense counsel involved speculation about how much would actually have to be done over under "military practice" if charges had to be refilled. "I'm not as familiar with military practice as you are," Kassem said to Judge Pohl. "This is not really military practice," replied the judge, somewhat wistfully, as if to purposely belabor the obvious point that the ad hoc military commission process involves just so much blind leading the blind and should not be confused with the more well-established process of courts martial under the Uniform Code of Military Justice.

Prosecutor Frank Rangoussis replied that the case should not be dismissed since even under a new MCA, the charges would remain the same. Kassem responded with the spontaneous shock that good trial lawyers cultivate. 'How can the prosecution assert that charges will not change? The very charge Mr. al Darbi faces, material support for terrorism, is one that the highest legal authorities in the Department of Defense claim should be removed from the MCA, since it is not really a "war crime!" '

The judge sidestepped the food fight and opted for the less drastic solution: continuance for 60 days rather than dismissal. But Mr. Kassem has a point. And even if material support remains part of the MCA menu of crimes, it will be interesting to see whether the government, which has denied its validity, then defends it.

There are other moving parts to this saga. In addition to the possible revamping of the MCA, and the decision that the administration will be making about whether to continue this case in the military commissions, there is the habeas corpus petition that Mr. al Darbi has pending and in which, the government's determination that he is an "enemy combatant" might be reversed. So far, the government has lost in about ¾ of the habeas petitions filed by detainees. And then, there is the broad judicial challenge to the military commission process taking place in the D.C. Circuit Court, which has ordered the parties to report to it by the end of this week on the events that transpired in Mr. al Darbi's hearing yesterday in Guantanamo. Any one of these processes has the potential to send Mr. al Darbi's case hurtling off into some unknown direction.

This is the point at which my grandmother, may she rest in peace, would say "Enough already!" And indeed, one gets the sense that things are unraveling to the point of no return. That does not mean, of course, that they won't continue to do so for some time. As Mr. Kassam noted in the post-hearing press conference, a chicken with its head cut off will still continue to run around for a while.

I wish my grandmother were in charge here.

A Day in the Life of Guantanamo Military Commissions

By Gabor Rona
September 22, 2009

In true "Camp Justice" fashion, scores of people - lawyers, press, victim families, court personnel, observers, military security and escorts descended upon Guantanamo at taxpayer expense for the better part of a week in order to attend a one hour hearing yesterday in which the issue was: "Should anything happen at this hearing?" And in equally true "Camp Justice" fashion, came the ruling: "No."

Namely, that 18 months after military commission charges were filed against the alleged mastermind and co-conspirators in the 9/11 plot, and during which time no trials have been held, yet another 60-day delay was requested by the government and granted by military judge Stephen R. Henley.

But everyone was there. Everyone except the defendants, that is. They had already sent a written communication to the judge stating that they did not object to the prosecutor's request for the further delay. They are boycotting these ad hoc proceedings and our government continues playing right into the hands of these alleged terrorists by subjecting them to unfair proceedings and providing them with a platform to claim injustice through their conspicuous absence. So incensed was prosecutor Swann that he passionately defended the right of the accused to be in court and requested the judge to send the "extraction teams" into their cells to drag them into the court room. The judge declined. If the logic of forcing the accused to come to court in order to have them state whether or not they wish to be there escapes you, welcome to the absurd world of Guantanamo Military Commissions! My guess is that the prosecutor's plea had more to do with a desire to quash the defendants' protests than with concern for their rights. Or perhaps it's that at the pre-hearing news conference, prosecutor Swann all but promised the assembled, including victim family members, that they would get a look at the accused co-conspirators.

But lest the side show distract us from the main event, here's what the hearing was supposed to be about. In addition to the requested delay, during which the government is supposedly determining whether to continue to prosecute these defendants in the discredited military commissions or to move their cases to federal criminal courts that have successfully prosecuted over 100 international terrorism cases in the last decade, there were requests by some of the accused to dismiss their lawyers, compel Arabic translation of military commission sessions, release the records of prior military commission sessions, and compel access to research supplies and materials.

One of the supplies requested by the accused, according to the prosecutor, was a typewriter. He briefly mocked the request, saying he wouldn't even know where to find one in this computer age. Defense counsel then calmly informed the court that the accused's request for a printer was mistranslated as "typewriter." Such is life in the military commissions.

Meanwhile, back in Washington where Justice Department officials can watch the proceedings on a live feed and must have been popping Tylenol like it was going out of style, there is also a broadside challenge to the military commissions taking place in federal court. The court has ordered the parties to report back to it on what happened down here yesterday within 72 hours.

With all this fur flying chaos afoot, is it too much to expect that those in power will come to their senses? That they will remember we have federal criminal courts with jurisdiction over war crimes, terrorism and all manner of bad behavior; that we have secure prisons from which no one escapes; and that we have a system of civilian justice that is the global gold-standard and that if used, would deprive these would-be warriors their desired martyred status as victims of a judicial lynching.

Live from Guantanamo

Human Rights First's International Legal Director Gabor Rona is in Guantanamo all week monitoring military commissions. He writes about his Guantanamo impressions in this Huffington Post piece - "A Day in the Life of Guantanamo Military Commissions."

He speaks of the prosecutor's request that defendants be forced to come to the courtroom (they were boycotting the proceedings) with the bemused observation:

If the logic of forcing the accused to come to court in order to have them state
whether or not they wish to be there escapes you, welcome to the absurd world of
Guantanamo Military Commissions! My guess is that the prosecutor's plea had more
to do with a desire to quash the defendants' protests than with concern for
their rights.

This is Guantanamo, and military commissions. Gabor calls us back to reality with the striking conclusion on the easier way to prosecute suspected terrorists:

With all this fur flying chaos afoot, is it too much to expect that those
in power will come to their senses? That they will remember we have federal
criminal courts with jurisdiction over war crimes, terrorism and all manner
of bad behavior; that we have secure prisons from which no one escapes; and
that we have a system of civilian justice that is the global gold-standard
and that if used, would deprive these would-be warriors their desired
martyred status as victims of a judicial lynching.

Read more about Human Rights First's work on why we should prosecute these cases in federal courts.

Generals on Torture, Lawyer on Gitmo: word is spreading

Two interesting reads that pick up our work on torture and Guantanamo this week:

Tom Ricks comments in Foreign Policy on the op-ed published last week in the Miami Herald by the two chairs of our military coalition denouncing Cheney, calling it "the best article I read on the eighth anniversary of 9/11."

If you missed the article, it's worth a read. It's pretty rare that two retired generals denounce a former Vice President.

Another of Human Rights First's partners was featured in the New York Times yesterday - Rich Zabel, the co-author of our In Pursuit of Justice reports. It says of his work with us:

Mr. Zabel is also co-author of two extensive reports
prepared for Human Rights First on prosecuting terrorism in the federal
courts. It is an apt topic, given that the Obama administration is currently
studying whether to try more detainees in civilian courts, in New York and
elsewhere. The report makes a strong case that the federal courts can handle
such cases.

Check out the article in the City Room.

David Danzig in Huffington Post, from Guantanamo

Check out David Danzig's latest Huffington Post piece - from Guantanamo. David was in Guantanamo to witness the military commissions proceedings happening there last week.

In this piece, he imagines what it would be like to take on the task of Richard Federico, the Navy Lieutenant charged with defending Mohammed Kamin, whose trial he witnessed.

He concludes:

While the military commission system continues to prove to be a bad way to
provide anything that appears to be justice to the outside world, many of the
military defense attorneys continue to labor under this system in ways that are
dazzling.

It is people like Federico - who tirelessly fight for their ideals no
matter what the odds - that have made this country so great. It seems long past
time that we should start listening to him.

The Detainee Dance at Guantanamo

Guantánamo Bay, July 16, 2009: At 1:40 PM the court room was prepared for motions to be heard against five men accused of plotting the 9/11 attacks, except that one of the detainees was talking with his attorney in such a loud tone that it was difficult for the proceedings to begin.

Mustafa al Hawsawi, one of the five so-called “9/11” defendants, claimed that he had been misled about his role in the day’s proceedings and said that he wished to leave before motions even began.

Al Hawsawi’s abrupt departure followed more than three hours of legal wrangling. At issue were questions regarding the detainees themselves. Did they have to attend their own hearings? If they refused, should the staff judge advocate use force to compel them to be in the court room?

Like so many things at Guantánamo related to military commissions, this was unchartered territory where the officials in charge seemed, at times, to be unsure of the rules. There is no legal precedent to fall back on. This is the first time that the military commissions were dealing with these issues in a conspiracy case involving multiple defendants.

The morning was filled with motions as the defense and the prosecution jockeyed for advantage.

In the strange world of military commissions, where nothing is what an outside observer might expect it to be, the prosecution argued that the court should do what it could to bring all of the accused to the courtroom. Give them a chance to speak for five minutes each at some point during the proceedings, a lead prosecutor in the case pleaded with the court, but don’t allow them to participate in the court’s active business.

No, said David Nevin, a legal advisor to Khalid Sheikh Mohammed. Mohammed, the alleged “mastermind” of the 9/11 plot, is representing himself in these proceedings but chose not to attend the motions that were argued today. It was Nevin’s view that Mohammed should be allowed to participate in the motions themselves since he was being tried for “conspiracy” and therefore the disposition of the other defendants in the case – were they competent to stand trial? – would have a direct bearing on his standing.

Meanwhile attorneys for al Hawsawi and Ramzi bin al Shibh argued that their clients should not be able to speak if they were to attend. Lawyers for these detainees are arguing that they may not be competent to stand trial, an argument that could be undercut if they began making statements in court.

Got it? Well, unfortunately the prosecution did not. When Robert Swann, a lead prosecutor, called the officers in charge of the detention facililty to relay the judge’s decision, he got it wrong. The judge was willing to provide the three detainees who are representing themselves five minutes to speak, but he ruled that the other two defendants would not be allowed to speak. The prosecutor said that all detainees who attended the proceedings would have a chance to speak.

To make matters worse, the officer who manages high value detainees then threatened the detainees that their “privileges” (regular meetings with attorneys and access to a laptop to prepare for their trials) “could be” revoked if they did not attend the day’s hearing. Neither the judge nor the prosecutor suggested in court that this could be the case.

After al Hawsawi left, Ali Abdul Aziz Ali told the court, through his attorney, that he had only come to the court to protect his privileges. He said that he felt like he had been “blackmailed.”The whole incident took an additional 45 minutes to sort out.

Observers were left scratching their heads. Why would a system be in place where the jailers and the prosecutor are so intimately linked? Why is it up to the prosecutor to communicate the judge’s orders to the detainees?And, well, wouldn’t we be better off in federal court where these sorts of snafus were much less likely to dominate the court’s agenda?

At the end of the day, it was unlikely that the cases against the accused could move very far forward this week. Too much depends on changes the Obama administration is mulling to the structure of the commission process. But what little did happen does not inspire confidence, since even the most basic issues like summoning detainees from their cells for a motion led to mistakes, confusion and frustration.

Throughout the day, the judge and many of the attorneys labored as best they could under a system that is constantly evolving. But at the end of the day many were left wondering if such a complex case might be better off in a more mature setting that is better equipped to handle these issues.

In the last 20 years, U.S. federal courts have handled more than 120 terrorism cases. Federal courts are equipped to try big time terrorism cases– now it is just up to the politicians to recognize that what is happening at Guantánamo is not the best option.

David Danzig – Deputy Program Director at Human Rights First – is in Cuba to monitor the proceedings and report back on events as they unfold.

Military Prosecutor: 66 Ready to Be Tried At Gitmo

Guantánamo Bay, July 14, 2009: Navy Captain John Murphy, the chief military prosecutor at Guantánamo Bay, announced today that military prosecutors were ready to proceed with cases against 66 of the more than 220 security detainees held at the naval facility in Guantánamo Bay.

Speaking to more than two dozen reporters at Guantánamo, Murphy said that he was “personally comfortable” that the government could mount a case that would not depend on evidence gathered through the use of coercion.

“We have 66 viable cases,” Captain Murphy said. He refrained from commenting on whether the government might seek to bring some of those cases to trial in federal civilian courts as it did in the case of Ahmed Ghailani, the alleged East Africa embassy bomber.

The chief military prosecutor went on to say that he “would not draw timelines” regarding what evidence would and would not be used. The Military Commissions Act of 2006 currently allows for evidence obtained by cruel, inhuman or degrading treatment to be admitted if it was obtained before December 30, 2005 and meets other criteria.

Independent observers said they were concerned that the prosecutor’s office would be making decisions about what evidence was appropriate and what evidence was not appropriate to use without any independent review, because the statute governing the commissions continues to permit coerced evidence under certain circumstances.

“They say repeatedly that they are not going to rely on evidence that was obtained using coercion,” said Vic Hansen, a former Army Judge Advocate General officer who is observing this week’s proceedings for the National Institute of Military Justice. “Well, it’s the prosecution who is making that call alone without any transparency.”

Captain Murphy said that the prosecution had developed “a standard” to ensure that no evidence obtained improperly would be used in the trials. But he declined to elaborate on that standard. In a Senate debate over proposed legislation to change the statute authorizing the military commissions, the Obama administration has suggested—among other changes—imposing a voluntariness standard that would presumably exclude coerced evidence. Absent such an amendment, existing law allows the military judge to admit evidence obtained by coercion.

“What it comes down to is more or less the government saying, ‘just trust us,’” said Hansen.

David Danzig – Deputy Program Director at Human Rights First – is in Cuba to monitor the proceedings and report back on events as they unfold.

Supreme Court Revives Chance for Justice in Torture Case

The Supreme Court’s decision to revive a lawsuit brought by four British men who claim they were tortured at Guantanamo provides the plaintiffs with a chance for justice and the public with an opportunity to learn how policies that undermined American interests and tarnished our reputation came to be embraced.

The four men -- Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal al-Harith -- were captured in late 2001 in Afghanistan and were transferred to Guantanamo in early 2002. In March 2004, they were returned to Britain. Their lawsuit named then-Defense Secretary Donald Rumsfeld and 10 military commanders. They claimed they were subjected to torture, harassed as they practiced their religion, and forced to shave their religious beards.

“This case presents the question of whether senior officials of the United States government can be held accountable ... for ordering the religious humiliation and torture of Guantanamo detainees," their lawyers said in the appeal to the Supreme Court. "This case presents the opportunity to recognize and enforce rights that are at least as basic and essential to human autonomy -- the right to worship and the right not to be tortured."

As the publicly released portions of the Senate Armed Services Committee report showed last week, the responsibility for the United States’ authorization of torture and abuse extends far beyond the low-ranking individuals who have faced punishment for their actions. “This case presents an opportunity to get to the bottom of the torture scandal so that we can put this sorry chapter behind us,” said Sharon Kelly, Campaign Manager for We Can End Torture Now.

“Seven Years… Is More Than Enough”

Big news yesterday: U.S. District Judge Richard J. Leon has ordered the release of five detainees who have been held at Guantanamo without charges since January 2002. Judge Leon ruled that the Justice Department had not proved that five of the six Algerian detainees at Guantanamo were enemy combatants under the government's own definition, and ordered them released “forthwith.”

"Seven years of waiting for a legal system to give them an answer . . . in my judgment is more than enough," he said. In an unusual statement, he urged the government not to appeal his decision and "to end this process."

Judge Leon’s ruling is the first on whether the government's evidence is sufficient to justify the confinement of a detainee. The order springs from the landmark Supreme Court Boumediene decision in June that Guantanamo detainees have the right to challenge their confinements in federal court under the legal doctrine of habeas corpus. HRF welcomed that decision as a step toward restoring the credibility of the United States as a nation committed to due process and the rule of law. Judge Leon’s ruling is a forceful indictment of the administration's detention policies.

Closing Guantánamo Will Require More Than the Stroke of a Pen

Amid the current debate about how the next U.S.  president should handle prisoners being held at Guantanamo Bay, Human Rights First Executive Director/CEO Elisa Massimino argues that:

Closing Guantánamo will require more than the stroke of a pen. It will take comprehensive policy changes and a major investment of domestic and international political capital. But it can be done, and it can be done in the new administration's first year.

Read her op-ed in the International Herald Tribune (11/18/08).

Obama on 60 Minutes: Regaining America's Moral Stature

President-elect Obama spoke about ending torture and closing Guantanamo on 60 Minutes last night:

"I have said repeatedly that I intend to close Guantanamo, and I will follow through on that. I have said repeatedly that America doesn't torture, and I’m going to make sure that we don’t torture. Those are part and parcel of an effort to regain America’s moral stature in the world."

HRF in the News

In his long piece “After the Imperial Presidency” in the New York Times Sunday Magazine, Jonathan Mahler discusses the assertion and expansion of presidential power under George W. Bush, the role that partisan politics has played in the complacency of the Congress, and the difficulty faced by the legislative branch when trying to push back against strong and determined president. In the article, he highlights the role played (and, more importantly, not played) by Congress with respect to U.S. interrogation and detainee treatment policies and quotes HRF Executive Director Elisa Massimino:

McCain first got involved in the torture fight in early 2005, when it was by no means a popular cause, particularly inside his own party. “At a time when there was not a single person in the United States who had any influence who was willing to take this issue on, he took it on,” says the executive director of Human Rights First, Elisa Massimino, who worked with McCain on the torture bill.

Yesterday, in Slate, he jumped on the “Dismantling Guantanamo” bandwagon, and wrote about the difficulties facing the Obama Administration in dealing with the approximately 250 detainees still imprisoned at Guantanamo. He writes, “It seems safe to say that Obama's preferred venue for trial will be the federal courts. This is the approach many on the left have been agitating for since 9/11. Last May, Human Rights First issued a 183-page report, "In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts," aimed at supporting this argument.” Yes we did.

Don’t Bring Guantanamo to the United States

Although we noted yesterday that Obama’s team has denied any intention to establish some form of preventive detention, my colleague Sharon Kelly has further strong arguments against such a move in The Hill’s Congress Blog, writing, based on her observations at Guantanamo, that “how terrorists are tried is as important as where they are tried”:

By announcing his intention to close the prison at Guantanamo Bay and bring to justice suspected terrorists held there, President-elect Obama would send an important message that the United States will again be a global leader on human rights. But closing Guantanamo only to bring it home to the United States would be taking one step forward followed by two steps back. Among the many lessons learned from the misguided Guantanamo episode is that new, ad hoc justice systems are prone to fail.

Terrorist Cases Should Be Tried in U.S. Federal Courts

The good news is in the headline of this Washington Post story, Guantanamo Closure Called Obama Priority. According to Obama advisers speaking anonymously, the Obama Administration will launch an immediate review of the classified files of those detained - some 250 people - at Guantanamo Bay upon taking office. Closing Guantanamo would send a potent message to the rest of the world, and would “create a global wave of diplomatic and popular goodwill that could accelerate the transfer of some detainees to other countries.”

But there has been talk – denied by Obama’s transition team – about contemplating some form of preventive detention backed by a new civilian national security court. Proponents of preventive detention often cite national security concerns and the need to protect operational secrets as grounds for keeping some of the cases out of U.S. federal courts. They also note that some cases against detainees in custody have been compromised by torture and coercive interrogations.

Fair enough, but hiding the use of torture, and allowing the use of evidence gathered by torture is anathema to U.S. standards of justice. Some Obama advisers acknowledge that the degradation of the image of the U.S. because of the Bush Administration’s policies is too severe to countenance any form of preventive detention. At any rate, Human Rights First believes that the federal courts are up to the task of trying those detainees who can be put on trial:

"The federal criminal courts are capable of handling serious terrorist cases and capable of handling people and evidence seized overseas, without sacrificing the government's need to protect sensitive material, while protecting defendants' rights," said Deborah Colson, a senior associate at Human Rights First.

Read our report, where HRF noted that since the Sept. 11, 2001, attacks, there have been 107 successful prosecutions of international terrorism cases in the federal courts, compared with three convictions in military commissions at Guantanamo Bay, including one plea bargain. (See also our Blueprint to Close Guantanamo detailing the steps necessary to close Guantanamo.)

During the campaign, Obama seemed to favor federal prosecution of terrorism suspects: "It's time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice," Obama said in August, after the completion of the first trial at Guantanamo Bay, which resulted in a relatively mild sentence for Osama bin Laden's driver.

Looking Forward: Ending Torture Under President Obama

With the celebratory cheers brought on by the decisive election of Barack Obama on Tuesday night fading, we are turning our sights on the transition to his inauguration, and the steps necessary to implement some of the promises made on the campaign trail. Although President-elect Obama faces a variety of challenges starting January 20, overhauling the Bush Administration’s most aggressive detention and interrogation policies, including the secret prison network run by the CIA, is among the most urgent.

HRF has called on the President-elect to address these issues right away:

"The erosion of human rights protections in the United States in the aftermath of September 11th has had a profound impact on human rights standards around the world," said Elisa Massimino, Executive Director and Chief Executive Officer of Human Rights First. "We urge President-elect Obama promptly to turn the page on the policies of torture and other abuse that have deprived the United States of its ability to lead on human rights for the past seven years."

Although some advisers acknowledge that the economic crisis may siphon his attention away from foreign policy efforts, these are issues on which Obama placed heavy emphasis during his campaign, and the President-elect's team told the LA Times that they expect his early moves to be "appreciated overseas, and create a more favorable environment for the new administration right at the start."

Addressing detainee treatment and interrogation policies and closing Guantanamo would provide a needed break from the past. The world has so soured on the Bush Administration that foreign leaders are suspicious of American proposals, "even when they're good ones," an advisor added.

Obama has declared that the Guantanamo Bay prison in Cuba should be closed and that detainees should be handled through the U.S. military justice system, and also supported increased oversight of the secret CIA detention program and efforts to promote a single standard of humane interrogation techniques that would restrict the CIA to interrogation techniques used by the military. But there’s a lot of difficult work ahead – and this is where organizations like HRF come in, to keep the pressure on, and to help sort out the details. In the new environment of an Obama Administration, we expect our views to be taken seriously.

'Today We Have More Hope ... '

Human Rights First Executive Director and CEO Elisa Massimino speaks about the election of Barack Obama and what it means for restoring our nation's commitment to human rights and the rule of law. Watch the video in which President-Elect Obama cites his meetings, organized by HRF, with our group of retired Generals and Admirals:

Facing the Music: CIA and British Agents May Face Prosecution for Allegations of Torture

Remember Binyam Mohamed? Senior CIA officers could be put on trial in Britain, after it emerged this week that the British Attorney General is investigating allegations of his torture.

To refresh you, Mohamed’s case was documented in HRF’s report Tortured Justice (pp.23-24). An Ethiopian-born former British resident, he was reportedly arrested in Pakistan in April 2002 and transferred to Guantánamo in September 2004, where he remains.

Mohamed maintains that after his arrest in 2002 he was rendered to Morocco, and then transferred to CIA custody in Afghanistan. His attorneys argue that the government's allegations linking him to a “dirty bomb” plot in the United States are based on confessions their client made after his detention and torture in Morocco, where, they say, he was slashed with a razor and beaten. In response to the torture, Mohamed says he attempted to tell his interrogators what he thought they wanted to hear, falsely confessing to some of their accusations.

But now, U.S. District Judge Emmet G. Sullivan has ordered the Justice Department to turn over documents to Mohamed’s attorneys detailing their client’s treatment while in detention overseas. These documents may help prove or disprove Mohamed’s claims that he falsely confessed only after being tortured at the direction of U.S. officials.

On October 21, 2008, shortly before the Justice Department was required to turn over exculpatory evidence to the defense, the Pentagon withdrew charges linking Mr. Mohamed to the “dirty bomb” plot. "That raises serious questions in this court's mind about whether those allegations were ever true," said Judge Sullivan. The government said it stood by the allegations but chose to withdraw them in order to expedite the proceedings. "That doesn't ring true; it rings hollow," Sullivan responded. "The government has never been concerned with acting expeditiously here." Read the Washington Post article here.

Earlier this week, the United States turned over potentially exculpatory intelligence documents related to Mohamed that have been the subject of judgments by the British High Court. The U.S. government initially resisted handing them over, releasing only seven documents, but on Wednesday it turned over the 35 remaining ones. British officials also told the High Court this week that the "question of possible criminal wrongdoing" in Mohamed's case has been referred to the country's attorney general for investigation into the actions of British agents, and potentially, senior CIA officers.

Last night, Mr. Mohamed’s lawyer, Clive Stafford Smith, said: "This is a welcome recognition that the CIA cannot just go rendering British residents to secret torture chambers without consequences, and British agents cannot take part in U.S. crimes without facing the music. Reprieve will be making submissions to the Attorney General to ensure those involved, from the U.S., Pakistan, Morocco, Britain, are held responsible." Reprieve is an organization, founded by Smith, that represents prisoners facing execution at the hands of the state in the conventional criminal justice system, or those subject to imprisonment outside the reach of the law in the ‘war on terror.’

Election Season is an Opportunity to Reflect on Human Rights

On the occasions of U.S. and Canadian election campaigns, Romeo Dallaire writes today in an opinion piece in the Toronto Star about Omar Khadr. “Both the United States and Canada are in the midst of election campaigns,” Mr. Dallaire writes, “so what better time for a principled discussion about human rights and international legal obligations?” He goes on to praise both John McCain and Barack Obama, who have each pledged to shut down Guantanamo if elected.

Mr. Khadr is a Canadian citizen and former child soldier accused of throwing a grenade that killed a U.S. soldier in 2002 in Afghanistan. He was 15 at the time, and has been held at Guantanamo Bay since he was 16. He is scheduled to be tried for war crimes on November 10, 2008 under the U.S. military commission system. Preparations for his trial have been characterized by legal shortcomings; read about our colleagues’ observations of Khadr’s case at military commission hearings at Gitmo here. Click here for more background on the case of Omar Khadr.

More Disarray at Guantanamo Bay

Army Lt. Col. Darrel Vandeveld, a prosecutor involved in war crimes cases at Guantanamo, has quit citing ethical concerns. According to Vandeveld, the prosecution is failing to share evidence that could help defendants with defense attorneys. Vandeveld had been prosecuting Mohammed Jawad, 24, accused of throwing a grenade into a military jeep in Kabul in 2002 (when he was just 16 or 17 years old), injuring two U.S. troops and their interpreter.

"My ethical qualms about continuing to serve as a prosecutor relate primarily to the procedures for affording defense counsel discovery," wrote Vandeveld in his filing. "I am highly concerned, to the point that I believe I can no longer serve as a prosecutor at the Commissions, about the slipshod, uncertain 'procedure' for affording defense counsel discovery."

It is increasingly clear that the military commission system is ill-equipped to deliver justice. Check out our report on the proven track record of federal criminal courts in prosecuting terrorism cases -- without compromising fairness – for a better solution to dealing with these difficult cases.


Oh, but there’s more. On the same day of Vandeveld’s resignation, a military judge rejected a formal motion by Khalid Sheik Mohammed to disqualify himself because of bias and his upcoming retirement. It looks like it will a long time before KSM’s victims see justice, especially since the issue of KSM’s torture continues to be an issue in the case.

Navy Lt. Cmdr. James E. Hatcher, the lead military attorney for defendant Tawfiq bin Attash, said that if a new judge is appointed, a new round of pretrial hearings would be required and the new judge would be forced to reexamine earlier rulings.

That could set back a process that still lacks a trial date and promises to be protracted. The loquacious Mohammed, as he does on most days, took the lead in speaking for the other four defendants, all of whom face the death penalty if convicted on various murder and war crimes charges.

CIA Director Michael V. Hayden has confirmed that Mohammed was subject to waterboarding, a technique that simulates drowning, among other tactics when he was held by the intelligence agency. But the Bush administration has argued that the coercive interrogation techniques it sanctioned did not amount to torture.

Defense attorneys said they will seek to exclude from trial all evidence extracted under duress. "Torture is at issue in this case," said Navy Lt. Cmdr. Brian Mizer, who is representing Ammar al-Baluchi. "It is going to be at the very center of this case."

Missing at Guantanamo: Signs of a Fair Trial

This week marked the beginning of the trial of Salim Ahmed Hamdan, the first Guantánamo Bay prisoner to face trial by military commission. These first few days have highlighted the deficiencies in the process afforded these men.

High amongst these is Judge Allred’s decision that the Fifth Amendment right against self-incrimination does not apply to Hamdan and that some statements obtained through coercion may be admitted as evidence. By allowing the prosecution to rely on self-incriminating statements obtained far from the battlefield without Miranda warnings and through coercion, Judge Allred has violated domestic and international fair trial standards. In the federal criminal justice system, a defendant must be warned that statements may be used against him before his interrogation begins, and corroborating evidence is required at trial to support such statements. Contrary to this norm, the LA Times reported today that much of the government’s case against Hamdan is based on self-incriminating statements alone.

The lack of crucial safeguards typically afforded defendants in the criminal justice system is only the latest proof that the military commission process is deeply flawed and that it cannot result in any just outcome.

Coerced Evidence Rejected at Guantanamo Trial; but the Process Is Still a Stain on the American Justice System

As the Los Angeles Times reported (07/22/08):

The military judge overseeing the first war crimes trial against a terrorism suspect at Guantanamo Bay agreed Monday to bar some evidence against Osama bin Laden's former driver because it was obtained in "highly coercive environments and conditions."

On the trial's opening day, Navy Capt. Keith J. Allred denied defense appeals to exclude other statements Salim Ahmed Hamdan made during interrogation by U.S. agents in Afghanistan as well as during his more than six years' imprisonment at Guantanamo Bay, Cuba. The judge said he would withhold judgment on a May 2003 interrogation until the defense had time to review 600 pages of detention records, which the government did not turn over until Sunday -- the night before trial.

Judge Allred's efforts to keep some coerced evidence out of the trials at Guantanamo are notable. But this does not change the fact that the system in place to try terror suspects held by the U.S. retains few of the fundamental protections that are the cornerstone of the American justice system - and which have long been an example to the rest of the world.

In a recent report, Tortured Justice, Human Rights First showed how the introduction of coerced evidence, obtained through the use of official cruelty, into military commission trials at Guantanamo Bay is rapidly contaminating the justice system and jeopardizing the prospects for the successful prosecution of terrorists.

In the report, HRF recommends that in order to stop the pollution of America’s justice system:

• The U.S. government should try terrorist suspects by court-martial or in civilian criminal courts where coerced confessions are inadmissible, the introduction of hearsay evidence is restricted to protect reliability and the rules governing the disclosure and introduction of classified evidence are clear.

• The U.S. government should prohibit the admission of statements extracted through torture or coercion during detention hearings and criminal trials for terrorist suspects.

• Congress should require the U.S. government to provide detainees with counsel at detention hearings, and restore habeas corpus rights to detainees designated as enemy combatants

• Congress should impose additional discovery requirements on government prosecutors in terrorism cases, subject to the same procedures employed in U.S. courts for evaluating potentially classified evidence.