10. Military Commissions Act (torture, kangaroo courts, indefinite detention, and loss of habeas corpus)
The Military Commissions Act: torture, indefinite detention, the end of habeas corpus, and kangaroo courts. One of the last acts of the Congress before the November 2006 elections, it passed the Senate on September 28 and the House the next day and was signed into law by Bush on October 17. The short story on this is that, pre-election, the Republicans pushed it and the Democrats caved on it. As bad as the military commissions envisioned in the act are, the Combatant Status Review Tribunals (CSRTs) which designate who is to be tried are even worse. They were complete shams. Decisions were made on the flimsiest and most general information without challenge or taking into account the methods (torture) used to obtain it. Detainees lacked effective legal representation, and the CSRTs did not come close to meeting minimal standards of judicial process, even a preliminary one. To top it off, as later military judges have found, the CSRTs designated detainees "enemy combatants" which does not meet the Military Commissions Act standard of "unlawful enemy combatants" vitiating their findings to date. Even when they make up the rules they can’t get it right.
The case of Murat Kurnaz shows how flawed the CSRTs are. He was a Turkish citizen who had lived his entire life in Germany. On October 3, 2001, at the point of getting his German citizenship, he traveled to Pakistan to visit religious sites. In December 2001, he was removed from the group he was traveling with, arrested by Pakistani police, and flown to Guantanamo 4 weeks later. In September 2002, he was interrogated by American and German intelligence officers who concluded that he had no links to terrorism and should be freed. This view was repeated in a memo dated May 19, 2003 from the commanding general of the Criminal Investigation Task Force, the Pentagon unit responsible for interrogating detainees. Against this was a memo dated June 25, 2004 by Brigadier General David Lacquement, then head of the US Southern Command’s intelligence unit, who said Kurnaz was a danger because he had among other things prayed during the national anthem, asked how high the basketball rim was in the prison yard (which in Lacquement-speak indicated a desire to escape), and enquired about guard schedules and detainee transfers. There was also the accusation that Kurnaz knew someone who knew a suicide bomber (except this was later shown to be untrue) and had stayed at a hostel in Pakistan run by a religious group linked to terrorism (the group’s link was also untrue). Kurnaz’s CSRT was held on October 4, 2004 where he was determined to be an enemy combatant. His lawyers challenged this in a DC District Court. (This was before the Detainee Treatment Act of 2005.) In a January 2005 opinion, Judge Joyce Green found that the CSRT process had been biased and was contrary to US and international law. This opinion became public on March 25, 2005 when it was inadvertently released by court officials. Nevertheless, Kurnaz continued to be held. In January 2006, a yearly Review Board hearing reconfirmed.that Kurnaz was an enemy combatant. Meanwhile Kurnaz’s detention and German participation in his interrogation was giving the story legs in Germany. Also in January 2006, the German Chancellor Angela Merkel brought up the case with Bush. On May 31, 2006, the FBI weighed in indicating that it had no interest in Kurnaz. In July 2006, a special Review Board met and determined that he was no longer an enemy combatant. The reasons for this change of status remain classified. Kurnaz was flown back to Germany goggled and shackled where he was released on August 24, 2006. Despite repeated findings by the intelligence community that Kurnaz was innocent of any links to terrorism, flimsy, false, and easily refutable evidence allowed by the CSRTs resulted in his detention without any formal charge for more than 4 1/2 years, a detention that would have continued if it had not been for the accidental leak of details of his case by a DC court and the personal intervention of the head of the German government.
On July 20, 2007, a three judge panel of the DC Circuit in Boumediene v. Bush and Al Odah v. US rejected parts of the Detainee Treatment Act (DTA) of 2005 asserting that it will expect to examine all information bearing on a detainee’s case and not just what the government used in deciding to hold a detainee. SCOTUS on June 29, 2007 changed its mind and decided to take a look at these cases in the fall, especially in light of what the Circuit Court might decide. On June 10, 2008, SCOTUS in a 5-4 decision with Kennedy writing the majority opinion and Roberts, Alito, Scalia, and Thomas dissenting ruled that that review procedures in the the DTA did not provide an adequate substitute for the writ of habeas corpus, that the CSRTs were deficient, that the Constitutional requirements for its suspension (rebellion or invasion) had not been met, that the Military Commissions Act (MCA) could not strip habeas out, that practical not formal considerations applied to its extension to non-citizens overseas, and that because the US exercised effective if not de jure sovereignty over Guantanamo, accordingly the writ of habeas corpus ran there. This is another indication that the “judicial” structure that the Administration sought to construct at Guantanamo continues to collapse under its own un-Constitutional weight. It also underlines the divide in the Court among those justices who subscribe to the Bush doctrine of the unilateral Executive and those who believe in the traditional doctrine of judicial review embodied in Marbury v. Madison early in the country’s history.
On September 24, 2007 in the Khadr case, a military appeals court found that on hearing more evidence a military judge had the power to determine that an alien enemy combatant was also an "unlawful" one. If upheld, this could clear the way for trials under the MCA. On November 8, 2007, the government informed Khadr’s defense that it had an exculpatory eyewitness which it had known about from the beginning but only chose to tell the defense about several years into Khadr’s detention. On May 29, 2008, the Pentagon announced that the judge in Khadr’s case Army Colonel Peter Brownback had been removed. No reason was given but there was a push on to start trials before the November 2008 elections and Brownback had threatened to suspend proceedings because the prosecution had been stalling about sharing records with the defense concerning Khadr’s detention. On June 8, 2008, it came out that Khadr’s attorney Lieutenant Commander Bill Kuebler had come across a military directive which ordered interrogators to destroy their handwritten notes of interrogations, i.e. destroy evidence, obstruct justice. The notes are important because they give a blow by blow account of interrogations and are far more complete than the sanitized summaries put together later based on them. They could, as the defense contends, show that Khadr’s various confessions were the product of torture. And their destruction effectively poisons the well in any prosecution of Khadr. On June 9, 2008, Kuebler was to submit an affidavit on this to SCOTUS in the Boumediene case. (see also item 85)
On October 5, 2007, the chief Guantanamo prosecutor career Air Force Colonel Morris Davis resigned in a dispute with reserve Air Force Brigadier General Thomas Hartmann (until recently a corporate lawyer now legal adviser to the convening authority for the Military Commissions Susan Crawford). The function of the convening authority is to approve or reduce charges against the accused or make plea agreements with them. It is supposed to be an arbiter, but in a clear conflict of interest, Crawford and Hartmann pressed the prosecutor’s office to file the most serious charges possible in an attempt to drum up publicity and support for the military commissions process. Davis has since said another reason for his departure was the placement of his office under that of the Department of Defense’s General Counsel. The DOD GC is William Haynes (See item 194) who signed off on the torture memos prepared by John Yoo for the Department of Defense. No matter how rank and foul this travesty of American justice is, it seems to have a never-ending capacity to get worse.
In Congressional testimony on December 11, 2007, Hartmann refused to say whether waterboarding was torture or whether waterboarding of an American soldier by a foreign government would be considered torture. He did suggest that he had no problem with evidence gained by torture being admitted into court proceedings.
On March 8, 2008, Bush vetoed the Intelligence Authorization bill because it outlawed waterboarding and required intelligence agencies to adhere to interrogation methods authorized by the Army Field Manual. Bush reiterated his standard lies on the subject:
While details of the current CIA program are classified, the Attorney General has reviewed it and determined that it is lawful under existing domestic and international law, including Common Article 3 of the Geneva Conventions. I remain committed to an intelligence-gathering program that complies with our legal obligations and our basic values as a people. The United States opposes torture, and I remain committed to following international and domestic law regarding the humane treatment of people in its custody, including the “Detainee Treatment Act of 2005 [On this last, he appended a signing statement saying that he would follow the DTA only if and when he felt like it].
On May 9, 2008, the judge Captain Keith Allred presiding over the first Guantanamo trial, that of Salim Hamdan, ordered Hartmann to have no further contact with the proceedings because he was too closely associated with the prosecution.
On August 6, 2008, Hamdan was convicted of giving material aid to terrorists but acquitted of the more serious charge of conspiracy in the African embassy bombings and to kill Americans in Afghanistan. The prosecution argued that Hamdan was more than Osama bin Laden’s chauffeur but also a bodyguard. It could not explain, however, why Abdallah Tabarak in that case who was bin Laden’s chief of security was released from Guantanamo in 2004 after 3 years detention there. It also pointed to the precedents of Nuremberg but again could not explain why Erich Kempka, Hitler’s driver, was never charged with anything. The defense pointed to testimony of Khalid Shaikh Mohammed that described Hamdan who has only a 4th grade education as a primitive Bedouin fit only to wash cars and change tires. When Hamdan was detained, two shoulder fired missiles were found in his car, and this appears to be the basis for his conviction on the one count. In this sense, the commission acted correctly and in adherence with its rules, but this trial in no way validates those rules.
Hamdan was determined to be an unlawful enemy combatant by the thoroughly discredited, sham process of the CSRTs. He was held for years without trial and subjected to coercive interrogations and denied the benefit of legal counsel during these. He was sent before a military commission where his lawyers were severely limited in the defense they could present. They had little access to evidence or ability to challenge it or present exculpatory evidence of their own. Evidence derived from coercive interrogations was allowed. The surprise is that under these conditions and before a handpicked military jury who did not even need unanimity to convict the prosecution still could not make the main part of its case. Yet even if Hamdan had been acquitted on all charges, his indefinite detention would not have ended.
Nuremberg was about holding leaders responsible but Hamdan is the very opposite of a leader. He is very much a pawn, perhaps not quite an innocent, certainly not a fighter. He is a small man caught up and by larger events. And this is what the Bush Administration’s War on Terror has produced after 7 years and the commitment of untold resources: the conviction of Osama bin Laden’s driver on a lesser count. Could anything be more ridiculous and pathetic?
The following day on August 7, 2008, Hamdan was sentenced to 66 months. The judge indicated he would credit current time served which amounts to 61 months making the effective sentence 5 months. The prosecution was asking for 30 years. What happens when Hamdan’s sentence is up remains unclear, but it will occur shortly before the inauguration of the next President.
On November 25, 2008, Hamdan was sent to Yemen where he will be held until December 27 and then released.
On August 14, 2008, Hartmann who is supposed to act as a neutral supervisor was barred from further involvement in a second trial that of Mohammed Jawad due to bias in favor of the prosecution by trial judge Colonel Stephen Henley. Also on August 14, 2008, Lieutenant Colonel Diane Zierhoffer, a military psychologist supervising Jawad’s interrogation, invoked her article 31 rights. Article 31 is the military version of the 5th Amendment prohibition against self-incrimination. Despite Jawad being a juvenile, known not to have any intelligence value, and rapidly deteriorating mentally, Zierhoffer recommended that techniques, such as prolonged periods of extreme isolation and sleep deprivation, be continued with him, resulting in Jawad attempting suicide. This isn’t us, or at least it shouldn’t be.
On September 24, 2008, citing a lack of due process and the supression of exculpatory evidence in the case of Mohammed Jawad, the prosecutor Lieutenant Colonel Darrel Vandeveld quit. Jawad, a juvenile at the time of his capture, was accused of throwing a grenade at Americans. In a sealed affidavit, Vandeveld stated that prosecutors knew that Jawad may have been drugged prior to the attack and that two other men had, in fact, confessed to it. It says a lot about how rotten the military commissions process is that even military prosecutors can’t stomach it.
A November 1, 2008 story in the Miami Herald reports that Thomas Hartmann has decided to retire from the military effective February 17, 2009. With vacation time, he would be gone before the inauguration. This may be a classic case of getting out of Dodge. He is currently facing two different investigations by the DOD for his Guantanamo activities.
On November 18, 2008, the chief military judge at Guantanamo Marine Colonel Ralph Kohlmann announced his immediate retirement. He was previously scheduled to retire in April 2009. His departure confuses further an already thoroughly dysfunctional and discredited process.
On November 20, 2008, a conservative federal district court judge in Washington, DC Richard Leon in the first habeas review of Guantanamo detainees ordered the release of 5 Algerians. These were Lakhdar Boumediene, Saber Lahmar, Mohamed Nechle, Mustafa Ait Idir and Hadj Boudella. Leon ruled that a sixth Algerian Bensayah Belkacem who was considered the leading al Qaeda operative in Bosnia had been lawfully detained. The six had been seized by US forces in Bosnia citing a plan to blow up the US embassy there. They were taken to Guantanamo in 2002 and have been held there ever since this despite a Bosnian court having decided that there was insufficient evidence against them. In October 2008, the government had withdrawn the bombing plot charge but claimed the men had been on their way to fight in Afghanistan. Leon noted that the government’s case rested on a classified document from a single unnamed source and termed it a “thin reed”. On December 16, 2008, the government returned 3 of the 5 (excluding Boumediene and Lahmar) to Bosnia.
A January 14, 2009 story in the Washington Post reports that Convening Authority Susan Crawford did not refer Mohammed al Qahtani, the man who was supposed to be the 20th 9/11 hijacker, for prosecution because he had been tortured. While saying that the interrogation techniques used against Qahtani had been authorized, Crawford indicated they had been abused in his case.
Also on January 14, 2009, federal district judge Richard Leon ordered the release of another Guantanamo detainee Mohammed el Gharani, a citizen of Chad. Gharani was arrested in Pakistan where he was learning English in 2002 when he was 14. He was accused among other things of belonging to an al Qaeda cell in London in 1998 although he was 11 and living with his parents, poor immigrants working in Saudi Arabia at the time. Even among the many egregious cases of dimwittery in the War on Terror, this one stands out in its stark injustice.
A January 25, 2009 story shed further light into just how much of a fraud the commissions process at Guantanamo has been. A declaration by Darrel Vandeveld, a former Guantanamo prosecutor (see September 24 above), reported that, despite having 6 years to prepare them, the Pentagon had no real case files on any of the detainees. There was no central repository for files and evidence, no chain of custody for physical evidence, not even a cataloguing system so that material held in various locations and databases could be assembled into such a file. It is difficult to express what a serious professional breach this is. Case files are the basis of any serious prosecution. It says so much about what a kangaroo process Guantanamo was that neither the Convening Authority nor prosecutors bothered to create such files and guard their integrity.