AIDP Blog

In an astoundingly provocative display of poor judgement, Iran has indicated that it may try the 15 British sailors that it captured in what it considers to be Iranian waters. While it is true that those who are threatened react sometimes without thinking, and we in the West are certainly feeding Iran’s sense of being threatened, Tehran would be able to assert no rationale ground for trying these soldiers - especially where the maritime borders in the Northern Persian Gulf are in dispute. They may think that to do so would be to recount the famous show-trial in the Soviet Union of the downed U2 pilot, but he was clearly meant to be over Soviet airspace - a big difference. AP is carrying the story via JURIST:

Mar 31, 7:33 AM (ET)

By NASSER KARIMI

TEHRAN, Iran (AP) - Iran’s ambassador to Russia renewed a threat Iranian officials made earlier this week, saying 15 British sailors held by Iran could be tried for violating international law, Iran’s state news agency IRNA reported Saturday. Gholam-Reza Ansari told Russian television Vesti-24 on Friday that Iran had launched a legal investigation of the British sailors. “They will be tried if there is enough evidence of guilt,” Ansari was quoted by IRNA as saying.

Britain’s Foreign Office said it was checking the claim that the sailors were facing trial, but noted that the ambassador’s comments didn’t alter their view of what was needed to resolve the standoff. “This doesn’t change our position, we have made it perfectly clear that our personnel were in Iraqi waters and we continue to request immediate consular access to them and their immediate release,” said a spokeswoman for Britain’s Foreign Office, speaking on customary condition of anonymity in line with government rules.

Ansari’s talk of the sailors and marines possibly being tried echoes comments made earlier this week by Ali Larijani, the main negotiator in Iran’s foreign dealings. If Britain continued its current approach to the standoff, Larijani told Iranian state radio, “this case may face a legal path. British leaders have miscalculated this issue.”

On Thursday, Iranian President Mahmoud Ahmadinejad told Turkish Prime Minister Recep Tayyip that the case had entered a legal investigation phase, state television reported. Ansari also reiterated Iran’s stance that the British government could resolve the crisis by admitting the sailors entered Iranian waters. “If the U.K. government admits its mistake and apologizes to Iran for its naval personnel’s trespassing of Iranian territorial waters, the issue can be easily settled,” he said.

The diplomat claimed the British government had escalated the crisis by taking the matter to the U.N. Security Council rather than resolving it on a bilateral basis. Britain has frozen most contacts with Iran and referred the issue to the U.N. Security Council, which expressed “grave concern” on Thursday over Iran’s seizure last week of the Britons.

The British sailors were detained by Iranian naval units March 23 while patrolling for smugglers near the mouth of the Shatt al-Arab, a waterway that has long been a disputed dividing line between Iraq and Iran.Iran appears intent on sending a message of strength as it faces mounting U.N. Nations sanctions over its uranium enrichment program, which the U.S. and other nations suspect the Islamic Republic is using to develop nuclear weapons.

On Friday, a captive Royal Marine was shown in new TV footage apologizing for being in Iranian waters, and Tehran made public a third letter supposedly written by the only woman prisoner among 15 Britons seized by Iran’s Revolutionary Guards, Faye Turney. Britain sharply denounced Iran over the treatment of the captives - a clear sign both sides were hardening their stance as the crisis entered its second week.

In my post, just sent, the only excerpt from the WSJ article was the following, which I had indented as a quote, thinking in my tech-incompetence that it would indent in the blog as a quote:

“These kinds of concerns will likely become more prevalent as other high-level al Qaeda detainees come before military commissions set up by the Bush administration. Guantanamo prosecutors estimate that at least 90% of cases depend on statements taken from prisoners, making the credibility of such evidence critical to any convictions. In Mr. Slahi’s case, Col. Couch would uncover evidence the prisoner had been beaten and exposed to psychological torture, including death threats and intimations that his mother would be raped in custody unless he cooperated.”

The weblinks were also part of the WSJ article. The rest of my post contained my own thoughts, such as they are.

and so it goes,

Chris

Mark’s discussion of Hicks’s “plea deal” and his request for thoughts prompts me to post the following excerpt from a piece from the Wall Street Journal on Military Prosecutor who refused to prosecute a case, because he came to believe that the accused had been tortured: Jess Bravin, The Conscience of the Colonel, Wall Street Journal, p. A1, March 31, 2007. “Lt. Col. Stuart Couch volunteered to prosecute terrorists. Then he decided one had been tortured.”

I, like many of you, am skeptical about everything going on at Guantánamo an in the other “sites,” in which we are “holding” those we have “deemed” to be terrorists or “enemy combatants.” I wonder how we can trust anything at all that happens in or in relation to those awful examples of what we have become.

It seems that Marine Corps pilot and a veteran prosecutor, Lt. Col. V. Stuart Couch, was set to prosecute Mohamedou Ould Slahi, but nine-months after he began, Couch decided that he could not go forward, because he believed that Slahi’s “incriminating statements” (the core of the case against him) had been elicited by torture.

It is gratifying to read about individuals who have a strong moral compass and who maintain their integrity in difficult circumstances. Col. Couch stated that “Of the cases I had seen, he was the one with the most blood on his hands….”

The problem with having let ourselves fall into this miasma of evil (disappearing people, holding them “indefinitely,” and apparently torturing them) makes a mockery of our “war on terror” and of our claims that we follow the rule of law. It fails us on every front and places us directly into a “modern blood-feud,” as I write in my book, Terrorism and Anti-Terrorism, in the book section of this blog. Jess Bravin, who wrote the piece, notes that:

These kinds of concerns will likely become more prevalent as other high-level al Qaeda detainees come before military commissions set up by the Bush administration. Guantanamo prosecutors estimate that at least 90% of cases depend on statements taken from prisoners, making the credibility of such evidence critical to any convictions. In Mr. Slahi’s case, Col. Couch would uncover evidence the prisoner had been beaten and exposed to psychological torture, including death threats and intimations that his mother would be raped in custody unless he cooperated.

When you look into the abyss, the abyss looks at you, as Nietzche said. I am gratified to read about individuals, like Col. Couch, who help us to escape falling further into the abyss.

I have pasted some relevant weblinks, below.
_________

KEY DOCUMENTS

>
Read a transcript2 of Mr. Slahi’s hearing before a Combatant Status
Review Tribunal at Guantanamo Bay, Cuba.
* * *
Read the unclassified summary3 of the spring 2005 Schmidt-Furlow
report presenting the results of a Pentagon investigation into
detainee abuse at Guantanamo. The section detailing Mr. Slahi’s
treatment is headed “second special interrogation plan,” on page 21.
* * *
Read a transcript4 of Mr. Slahi’s Administrative Review Board hearing
at Guantanamo Bay in December 2005.
* * *
See the Defense Meritorious Service Medal5 and citation awarded to
Col. Couch by Defense Secretary Donald Rumsfeld in September 2006.
* * *
Read a letter6 Mr. Slahi sent to his attorneys, Nancy Hollander and
Sylvia Royce, from Guantanamo Bay on Nov. 9, 2006.

* * * * [t

 
   
Post 9/11, much disagreement and uncertainty remains about one of the seminal issues in counter-terrorism: where to try terrorists. While much discussed, this issue is not resolved. I address this issue in my article (”Where are Terrorists to be Tried–A Comparative Analysis of Rights Granted toSuspected Terrorists;  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=977259 ) a comparative perspective by examining American, Israeli, Russian, Indian and Spanish approaches. Though the five nations’ judicial and legal regimes differ, a comparative approach enables policy makers, academics and the public to develop a more global perspective on the issue and possibly to adopt other nations’ models.

In the context of articulating the most appropriate forum for trying terrorists, the considerations and ramifications are numerous. The guiding principle must be the obligation of civil, democratic society to respect and uphold the rule of law. The analysis will include a discussion of how each of the nations define suspected terrorists, before what court of law are terrorists brought, what alternatives are considered and whether fundamental protections are guaranteed.

A critical issue in determining the appropriate forum is the terrorist-defendant’s right to confront his accuser. In the American criminal and constitutional law context, the 6th Amendment guarantees a defendant the right to “be confronted with the witnesses against him.” Should that right be granted to the terrorist-defendant? Bringing terrorists to trial would potentially require the exposing of intelligence sources. This is a major dilemma that will be addressed throughout this article.

Additional issues that must be addressed include: 1) representation—will the defendant be entitled to choose counsel or will counsel be assigned; 2) will the defendant be tried by jury or by a bench trial; 3) will the trial be conducted by an independent judiciary; 4) will the defendant be granted the right to appeal and if yes, 5) to what court.
 

Hicks has been sentenced.

In an earlier post, I expressed my hope that the Hicks conviction and sentencing judgment would serve as a teaching moment regarding the heinousness of terrorist violence and its denunciation through rule of law.  I’m not so sure that has happened.

Assuredly, the judge read the 35 admissions Hicks had made. Hicks acknowledged each. There were some quibbles in the plea negotiations. The NY Times reports:

One paragraph of the charges said, for example, that Mr. Hicks had watched television footage of the Sept. 11 attacks at a friend’s house in Pakistan and had “expressed his approval of the attacks.” But the paragraph Mr. Hicks agreed to said that the friend “has said he interpreted his gestures as approval of the attacks.”

The N.Y. Times also reports:

During the hearing, the military judge disclosed an extraordinary series of concessions Mr. Hicks had made to his American captors in negotiations for the plea deal, in which he admitted material support to a terrorist organization.

The deal included a statement by Mr. Hicks that he “has never been illegally treated” while a captive, despite claims of beatings he had made in the past. It also included a promise not to pursue suits over the treatment he received while in detention and “not to communicate in any way with the media” for a year.

 Thoughts?

I’m on a lunch break at our Sacred Violence Conference (http://law.case.edu/lectures ), however I wanted to step out and post this breaking news regarding the Hicks plea agreement. 

 According to news reports Hicks confessed to 35 specified allegations, his plea agreement mandates that: 

• He is forbidden from talking to the media for 12 months
• He will serve a jail term limited to seven years (actual term determined by the panel)
• A portion of his sentence may be suspended
• He admits he was never mistreated
• If he violates the terms of his agreement it may delay his release from jail
• He must agree to assist U.S. and Australian officials with information about his terrorist activities

The International Criminal Court lost its first judge this month. Judge Hudson-Phillips was the former Attorney General for Trinidad and Tobago. Following is the ICC’s official announcement:

Judge Karl T. Hudson-Phillips submitted his resignation from the International Criminal Court (ICC) for personal reasons on 14 March 2007. His resignation will take effect on 30 September 2007.

President Kirsch informed the President of the Bureau of the Assembly of States Parties, H.E. Bruno Stagno Ugarte, of Judge Hudson-Phillips’s resignation. In accordance with article 37 of the Rome Statute, the Assembly of States Parties will elect a judge to fill the vacancy left by Judge Hudson-Phillips’s resignation.

The House Armed Services Committee began conducting hearings today regarding Military Commissions and the future of GTMO.  Ike Skelton, identified seven possible defects in the MCA, stating:

“Last year, when Congress passed this law, I argued that the most important task before the Congress was to design a system that could withstand legal scrutiny and would be found to be constitutional.  For that reason, I proposed that we expedite the ability of the courts to review the constitutionality of various provisions of the bill, which I find to be legally suspect. 

“First, it seems clear to me and many others that the Act may be unconstitutionally stripping the federal courts of jurisdiction over habeas cases.   “Relatedly, the Act may violate the exceptions clause under article III of the Constitution by impermissibly restricting the Supreme Court’s review.  “Third, it is questionable whether the Supreme Court would uphold a system that purports to make the President the final arbiter of the Geneva Convention. “Fourth, the provisions regarding coerced testimony may be challenged under our Constitution. “Fifth, the Act contains very lenient hearsay rules which rub up against the right of the accused to confront witnesses and evidence.  “Sixth, the Act may be challenged on equal protection and other constitutional grounds for how it discriminates against the detainees for being aliens. “Lastly, article I of the Constitution prohibits ex post facto laws. That is what this Act may have created.”

As it relates to coerced testimony and interrogation, my colleague Amos Guiora has something to say about that here.  With the Hicks guilty plea, and sentencing likely at the end of the week, plus charges against Omar Khadr likely to be certified in the coming weeks, we should expect some increased Congressional attention to the MC’s.  UPDATE: In related notes, Diane Marie Amann provides us with a useful pointer and summary of the case People v. La Frana, a 52 year old Illinois case in which a murder conviction was set aside because the confession upon which it was based had been coerced.  Defense Counsel in the case was none other than Supreme Court Justice John Paul Stevens.  Check out her post HERE. 

Don’t expect Khadr to enter a guilty plea, or to plead his innocence.  What is more likely is that he will pull a Saddam, seeking to insert chaos into the courtroom (as detailed in Saddam On Trial). 

Khadr previously has stated he will not cooperate with his “infidel pig” lawyer, or the “court of the infidels” which will make for a bit more excitement than the Hicks case.  It also puts advocates for the Defense in an interesting position— if Hicks was innocent, and his plea was part of a “brilliant defense maneuver” to get him out of the MC’s and into regular courts, is the opposite true.  That is, if Khadr enters a not-guilty plea is his strategy ill conceived?  It seems Defense advocates can’t have it both ways and it will be interesting to see how these cases develop. 

Today the House Armed Services Committee held hearings on the Military Commissions Act of 2006 and the Future of the Detention and Interrogation Facilities at Guantanamo Bay.  My article, ” Interrogation of  Detainees: Extending a Hand or a Boot” (University of Michigan Journal of Law Reform, forthcoming) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=975772 addresses many of the issues that will come before the Committee.

The article analyzes the limits of interrogation in Guantanamo Bay by historical analogy to the treatment of African-Americans in the detention centers in the Deep South in the 1930’s and 1940’s.  In my article I recommend specific interrogation measures that can be implemented while guaranteeing detainees certain constitutional guarantees and protections.

I’m excited to announce that this Friday at Case Western we will be hosting the first annual Roe Green Foundation Conference entitled- “Sacred Violence: Religion and Terrorism.”  Our keynote speaker for the event will be the eminent Dr. Bruce Hoffman, author of Inside Terrorism.  He is Professor of Security Studies at Georgetown University’s School of Foreign Service and formerly held the Corporate Chair in Counterterrorism and Counterinsurgency at the RAND Corporation and was also the Director of RAND’s Washington, D.C. Office. 

The Roe Green Foundation Conference, presented by the Institute for Global Security Law and Policy, is the first of three major national conferences at Case Western Reserve University School of Law supported by the Foundation. The series’ focus is on the most relevant current issues concerning global security law and policy, and brings together distinguished leading experts to discuss such topics as bioterrorism and religion and terrorism, and to assess the U.S. response to terrorism.

This year’s Roe Green Foundation Conference will examine the role that theological justification plays both in motivating individual suicide terrorists and sustaining an organization’s use of this tactic by providing it with a deep pool of recruits to draw on. It will explore and explain the rise of suicide terrorism world-wide since 9/11, assess religion’s role as a key accelerative in this process, and discuss potential legal and policy responses to such acts. 

The event will be WEBCAST, and for those of you who can make the trip, CLE credit is available.  Check out the event website HERE.