AIDP Blog

 We  have been teaching various aspects of human rights at a summer program at St. Mike’s College at U of T, one a professor from Oxford, the other from Queens and myself, so it is not odd  to notice the language of human rights here. There’s a “human rights” commission rather than a “civil rights” commission. Posters tout human rights. This is a call for expanding our language to ensure a commitment to human rights by including it in our dialogue. Please don’t get me wrong.  I applaud our Constitutional Rights and well remember the ACLU cases won, as, for example, an injunction I won allowing a Christmas Eve candlelight vigil on the capitol lawn for the homeless. It is nevertheless clear we need more language choices in an international world. John Ibbitson writing in the Toronto Globe and Mail (07/28/07) criticized U.S. parochialism: “Exceptionalism is America’s defining characteristic. … Americans are often incurious about matters overseas and smugly confident of their own superiority.”  Ibbitson quotes as proof Arizona State Senator Ron Gould who recently, in turning down a bid for state international schools that would teach international cultures, said: “There are a lot of us here who are not internationalists. These schools actually have kind of a United Nations flavor to them, and we’re actually into educating Americans into Americanism, not internationalism.”  Will U.S. citizens  soon be encouraged to break their C.D.’s of Mozart  and Beethoven?  And, heavens forbid, will Gerard Mortier, from France, or Emir Kusturica, from Serbia not be allowed to have an influence on opera in America? This national blinding of rights except for ouselves is not new. In its own time it has been used against Irish, German, Jewish, Italian, Chinese, Japanese, and on and on. It is hard to believe that it is not in evidence at Guantanamo.

Colonel Morris Davis, the Chief Prosecutor in Guantanamo has an Op-Ed in todays NY Times. In it he addresses some of the criticism of Guantanamo. In short, he reaffirms how the reality of Guantanamo is a far cry from what critics claim Guantanamo is. (Full Disclosure, I have served as a consultant to Colonel Davis, providing legal research support). In the piece Colonel Davis:

1. Details how Camp X-Ray photos still find their way into the papers five years after the temporary detention facility closed. A point I have detailed with photos here. He also details the quality of the facilities, and how they rival those in many U.S. prisons.
2. Addresses the criticism of the military commission process and discusses the judicial guarantees provided by the military commisisons.
3. Directly challenges the repeated assertion that the accused can be excluded from his trial in a “secret proceeding” and be convicted on “secret evidence.”
4. Addressing evidence obtained by coercion and hearsay evidence he admits that the challenge is determining what constitutes coercion and how much coercion is too much. He takes responsibility for the final decision on the evidence. Importantly, Colonel Davis has publicly commented and has reaffirmed to me that he would not allow evidence derived from torture– and the MCA would not permit it.
5. Takes on the critics regarding the admission of hearsay, highlighting that hearsay is present in “United Nations-sanctioned war crimes tribunals, including the International Criminal Court, the International Criminal Tribunals for the Former Yugoslavia and Rwanda, and the Special Court for Sierra Leone. The Nuremberg trials also did not limit hearsay evidence.”

Definitely worth reading.

Here is a bit more on the Guantanamo story

The Associated Press
Friday, June 22, 2007

US May Move Detainees to Afghan Prison

By DEB RIECHMANN
The Associated Press

WASHINGTON, June 22 (AP) — The United States is helping build a prison
in Afghanistan that would take some prisoners now at Guantanamo Bay,
but the White House said Friday that it was not meant as an alternative
to the detainee facility in Cuba.

The Bush administration wants to close Guantanamo Bay and move its terror
suspects to prisons elsewhere, but says no decision about the status of
the facility is imminent. White House deputy press secretary Dana Perino
said the United States has released about 80 of some 375 detainees,
and hopes to transfer several dozen Afghans back to Afghanistan in the
near future.

“America does not have any intention of being the world’s jailer,”
Perino said, adding that the administration wants other nations to
take their prisoners back, and treat them humanely, but not let them
back on the battlefield.

She said President Bush has directed Secretary of State Condoleezza Rice
to work with her counterparts around the world to try to repatriate the
detainees to their home countries, make sure that they are held safely
and treated humanely and that they are not allowed to perpetrate acts
of terrorism.

The Guantanamo Bay prison, set up in 2002 to house terror suspects
captured in military operations, mostly in Afghanistan, has been a
flashpoint for criticism of the Bush administration at home and abroad.

Human rights advocates and foreign leaders have repeatedly called for
the shutdown of Guantanamo, and the prison is regarded by many as proof
of U.S. double standards on fundamental freedoms in the war on terrorism.

Some of the detainees come from countries that are U.S. allies,
including Britain, Saudi Arabia and Australia. Each of those governments
raised complaints about the conditions or duration of detentions, or
about the possibility that detainees might face death sentences.

Senior administration officials said Thursday that a consensus is
building for a plan to shut the detention center and transfer detainees to
one of more Defense Department facilities, including the maximum-security
military prison at Fort Leavenworth, Kan. Perino would not comment on
whether detainees were headed to Kansas.

Bush’s national security and legal advisers had been scheduled to discuss
the move at a meeting Friday, the officials said, but after The Associated
Press reported it, the White House said the meeting would not take place
that day and no decision on Guantanamo Bay’s status is imminent.

Three senior administration officials spoke about the discussions
on condition of anonymity because they were internal deliberations.

Perino said the meeting was canceled “very late” on Thursday because
it was determined that a “meeting wasn’t necessary at this time.”

“There was going to be a meeting in which Guantanamo detainee issues
were discussed today, but that has been taken off the schedule,”
Perino said Friday. “That doesn’t mean that people don’t continue
to work on what the president has asked them to do, which is work
towards getting that facility closed.”

Expected to consult soon, according to the officials, were Rice,
Vice President Dick Cheney, Defense Secretary Robert Gates, Attorney
General Alberto Gonzales, Homeland Security chief Michael Chertoff,
National Intelligence Director Mike McConnell and Joint Chiefs of Staff
Chairman Gen. Peter Pace.

VIA AP:

The Bush administration is nearing a decision to close the Guantanamo Bay detention facility and move the terror suspects there to military prisons elsewhere, The Associated Press has learned.

President Bush’s national security and legal advisers are expected to discuss the move at the White House on Friday and, for the first time, it appears a consensus is developing, senior administration officials said Thursday.

In the immediate aftermath of the developments in the Gaza Strip, much has been said and written. It is, I suggest, far too early to engage in prognostication. The unknowns far outweigh the known, the “x” factors are still hazy and the expected results of the just announced summit next week with the participation of Israel, the PA, Egypt and Jordan are unclear. It is important to note that the President of the PA, Abu Mazen, referred to Hamas as “murderous terrorists”

As there is no vacuum at such times, particularly in the Middle East, there are number of decisions that foreign governments and NGO’s need to make in the interim. The following questions are a check-list or road map for the interim:

1) will Egypt act forcefully to prevent continued arms smuggling into the Gaza Strip? To date, according to intelligence reports (not to speak of “facts on the ground”) Egypt has turned a blind eye on this issue.

2) will Israel allow Fatah (PLO) supporters in Gaza to enter Israel for the purpose of moving to the West Bank? (akin to internal refugees)

3) will the Hamas attack the PA/Fatah in the West Bank and if yes, what will be the PA’s response?

4) will the international community turn its back on Hamas in the Gaza Strip, thereby denying it of any financial resources? In such an event, which NGO and/or foreign government would respond to the all but inevitable humanitarian crises?

5) what is the legal status of the Gaza Strip? Is it still a part of the PA or given the establishment of an emergency PA government in the West Bank, is the Gaza Strip an independent entity? If so, does Israel modify “rules of engagement”?

6) what is the significance of a survey indicating that 40% of the Gazan population would like to enter in a confederation agreement with Jordan? (the reader will recall that the Gaza Strip was under Egyptian rule prior to the 1967 Six Day War whereas the West Bank was under Jordanian rule)

7) what is the most effective role the US can presently play? Is supporting Abu Mazen in the best interests of long-term US policy?

8 ) should Israel release from jail Marwan Barghouti, currently serving a number of life sentences for the murder of Israelis but considered by many the most effective and charismatic Fatah leader?

I have argued, “Quirin to Hamdan: Creating a Hybrid Paradigm for the Detention of Terrorists”, Florida Journal of International Law (forthcoming) and “Where are Terrorists to be Tried - A Comparative Analysis of Rights Granted to Suspected Terrorists“, Catholic University Law Review, Vol. 56, No. 2, Spring 2007 for the need to establish an alternative legal paradigm for bringing to trial individuals presently detained in Guantanamo Bay and Abu Ghraib.

My proposal would require amending the Foreign Intelligence Surveillance Act (FISA) Court so that it would function as a domestic terror court. The defendants would be granted most—but not all—of the criminal law rights available to defendants in the Article III courts today. One of the primary distinctions is that defendants brought before the amended FISA Court would not be guaranteed—because of the need to protect sources—the right to confront all of their accusers. The proposal which includes independent judicial review of remand and conviction decisions alike would enable the government to bring to trial both US and non-US citizens (including those currently held outside of the US who would be brought to the US for trial) to whom certain constitutional privileges (including Miranda) would be extended.

The proposal is mentioned in the following article: http://www.latimes.com/news/nationworld/nation/la-na-gitmo17jun17,1,952291.story?coll=la-headlines-nation

I read a Guantanamo article recently, and was again struck by the fact that the press has no problem using 5 year old photos to depict the detention facility in Guantanamo. This is my one attempt at calling them out for repeatedly misrepresenting the conditions in the facility.

The photo, featured at right (caption mine), was taken from an ABC.com story. It is representative of the media’s malfeasance or at least their incompetence in accurately telling the Guantanamo story.

The facility depicted above was known as Camp X-Ray. It was closed in April of 2002, after only a few months of operation. It was a temporary facility, which has since been replaced by facilities on par with regular U.S. prisons. Granted, the caption accompanying the photo above stated that the image was from January 2002. However, it leaves out the key fact that the depicted facility no longer exists. And this was not a decision prompted by copy space, as the caption editor hade enough space to share the obvious fact that “the detainees [are] in orange jumpsuits.”

Over on the right is what Camp X-Ray looks like today. Note the 6 foot tall weeds and rusted fence. The press continually showing images of Camp X-Ray is something akin to showing photos of Alcatraz and pretending they are representative of current prisons in California.

So what does the current GITMO detention facility look like? Well, the government has provided ample photos here. (Note, the outdated Camp X-Ray photo was government provided).

Now I understand that using actual photos might not move newspapers as well as using outdated photos. But at some point accuracy should trump sensationalism. I’m skeptical accuracy will win out, at least until the government starts releasing more usable photos. In the interim, perhaps they should consider holding all Guantanamo related press conferences from the grounds of Camp X-Ray.

While the current images provide an accurate depiction of Guantanamo, I don’t expect the press to use this photo of a basketball court at Camp 4/Camp Delta Guantanamo:

Or even this photo of the rest of the Camp 4 facility:

The problem is that those are pretty boring pictures. Without people in them, they really are just mug shots of buildings.

But, there are more accurate images the press could be using which feature detainees. For example, these photos depicting detainees clad in culturally sensitive clothing, free to interact with one another:

Certainly not all detainees live like those depicted above. However the outdated Camp X-ray photos bear no resemblance to the high security facilities depicted below (note the cone with a “P” advising guards to be quiet during prayer time and the Koran hung from the wall of the cell).

When will the press start accurately depicting the Guantanamo facility?

Here is an update from Marga Lacabe’s Human Right’s Blog: Court orders release of “enemy combatant” in U.S.
2007.06.11 15:03:47

————————————————————————

http://www.humanrightsblog.org/archives/004095.html

————————————————————————

Mon Jun 11, 2007 5:07PM EDT

By James Vicini

WASHINGTON (Reuters) - President George W. Bush cannot order the military
to indefinitely imprison a suspected al Qaeda operative, who is the only
foreign national held in the United States as an “enemy combatant,” a court
ruled on Monday.

The 2-1 appellate ruling was a major setback for Bush’s contention in the
war on terrorism that he has the power to detain people in the United
States without charging them.

–
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The Charles Taylor Trial before the Special Court for Sierra Leone sitting at the International Criminal Court in The Hague began on Monday, June 4, 2007.  As soon as the trial began, Taylor’s lawyer, Karim Khan, announced that Taylor, who had refused to show up in court, had fired Khan and had instead asked to represent himself.  Khan then walked out of the courtroom despite Presiding Judge Sebutinde’s order that he remain and continue to represent Taylor notwithstanding Taylor’s wishes.  The Tribunal then permitted Chief Prosecutor Stephen Rapp and his Sierra Leonean colleague, Mohamed Bangura, to present their opening argument, depsite the absence of Taylor and his lawyer.  For a detailed description of the first day of trial see:  http://charlestaylortrial.org.

Taylor is not the first war crimes defendant to attempt to disrupt or derail his trial by failing to attend the sessions, firing his lawyer, and seeking to represent himself.  Indeed I was unable to attend the opening act of the Taylor trial because I was in Arusha, Tanzania, conducting a series of workshops for the Rwanda Tribunal judges about maintaining order in the courtroom in the face of such disruptive tactics.  For my paper on the subject, see: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=967431 

Among the proposals contained in my paper is the idea of appointing stand-by defense counsel, ready to step in if defense counsel ever becomes so disruptive that he/she must be removed from the courtroom, or if defense counsel ever boycotts the proceedings, or if a self-reprsented defendant attempts a boycott or becomes too disruptive or ill to continue. During the discussion in Arusha, some of the ICTR judges felt that it would be inappropriate to appoint such stand-by defense counsel over the objections of a defendant.  They pointed out that lawyers cannot effectively represent a client who refuses to speak with them.  Others felt that the interests of justice justified appointment of stand-by defense counsel in such circumstances so that the trial could continue without appearing one sided and unfair.  Finally, an answer that seemed acceptable to both sides emerged: the Tribunal could appoint “amicus counsel,” who could cross examine witnesses and make arguments to assist the court, but would not purport to be representing (or “instructed” by) the defendant.  Admittedly, this is a much broader conception of amicus counsel than has been employed by international tribunals in the past, but there is no principle that requires Amicus counsel to be limited to pre-trial jurisdictional issues and legal questions. I would be interested in the thoughts of others on whether this could be the solution in the Charles Taylor trial.

In a surprise for the government, a military judge in GTMO has thrown out the case against Omar Khadr.  From The Globe and Mail:

All charges against Canadian Omar Khadr were dismissed Monday by a U.S. military judge, who ruled that his tribunal had no jurisdiction to try the alleged terrorist because the government had failed to designate him an “unlawful enemy combatant.”

“Charges are dismissed without prejudice,” Colonel Peter Brownback said. Congress created the military tribunals to try only so-called “unlawful” enemy combatants. The military panel that ruled on Mr. Khadr’s status designated him only as an “enemy combatant” in 2004.

What does this mean?  Until the government puts the unlawful into their CSRT determinations, the charged detainees can’t be tried.  The MCA requires that those triable by military commission be unlawful enemy combatants (alien as well).  The CSRT determination as to Khadr (and all the other detainees) is that they are “enemy combatants” not “unlawful enemy combatants.” 

The root problem for the government is that the order from the Deputy Secretary of Defense does not provide a means for the CSRT’s to determine that a detainee is an “unlawful enemy combatant.”  According to the MC judge, until the CSRT determines he is an “unlawful enemy combatant” the MCA is inapplicable to Khadr and he cannot be tried by military commission.  It seems that those drafting the MCA and the CSRT order failed to ensure they were speaking the same language. 

At the hearing, one of the prosecutors Captain Keith Petty unsuccessfully attempted to remedy the legal problems highlighted by the judge, by arguing that “Omar Khadr clearly qualifies as an unlawful enemy combatant” and offering to show a video substantiating this fact.  The video would have shown Khadr in civilian clothes planting a roadside bomb in Afghanistan. 

Moving forward, it looks as though the government will need to redraft the Deputy Secretary of Defense CSRT order and reconvene CSRTs for every detainee they plan to try, unless the government can come up with a more creative solution. 

Again, I’m disappointed by how the military prosecutors got the shaft.  In Hicks the prosecution came ready for trial, only to find out that a deal was made at the Appointing Authority level without their knowledge.  This time poor drafting at the Deputy Sec Def level left the prosecution, again ready for trial only to find out that the MC system needs more tweaking.  Until those deficiencies are remedied, the prosecutors, victims, and detainees are thrown back into a holding pattern which could have been prevented.   

UPDATE:

Bobby Chesney writes:

Well, what does it mean to be an unlawful enemy combatant under the MCA?  Section 948(a)(1) explains that an unlawful enemy combatant is either  

(1) “a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces)” or  

(2) “a person who . . . has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal [“CSRT”] or another competent tribunal . . . .” (§ 948(d) also states that a determination of unlawful combatancy by such tribunals are binding on a military commission).  

What, then, is the problem insofar as Khadr is concerned?  It’s hard to tell from the scanty press coverage so far, but I gather from the reporting that the judge objects to the fact that the CSRT procedure only determines “enemy combatant” status simpliciter, and does not expressly determine the lawfulness of the detainees belligerency.

* * *

[I]t does not necessarily follow that the Commission lacks jurisdiction. 

* * *
The definition of “enemy combatant” employed in the CSRT process is as follows: 

“An ‘enemy combatant’ for purposes of this order shall mean an individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners.  This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.” 

The question is whether it is possible to satisfy that definition—as a CSRT determined Khadr did—without also satisfying clause 1 of § 948a(1).  They aren’t identical, to be sure, but they certainly are very close.  Given that Khadr was determined by a CSRT to satisfy the “enemy combatant” definition, and given that comparable language is used in § 948a(1) to describe who counts as an unlawful enemy combatant, it would seem that there is a strong case to be made that the commission does in fact have jurisdiction