Gavel Grab

Archive for the ‘Detainees’ Category

Study: Guantanamo Reviews Limited by D.C. Appeals Court

The federal appeals court in Washington, D.C. has effectively choked off efforts of terror suspects held at Guantanamo Bay to win freedom by contesting their confinement.

An academic study by Seton Hall professors reached that conclusion, according to an Associated Press article. The U.S. Court of Appeals for the District of Columbia Circuit ordered lower courts to be more accepting of the federal government’s evidence justifying detainees’ continued incarceration, the study said.

Of a dozen terror suspects who had their cases heard by trial court judges in Washington since 2010, when a key appeals court decision was handed down, only one gained a court order directing his release. Appellate judges later overturned that order.

The report said that in the past two years, “a clear pattern has now emerged: Almost no detainees will prevail at the district court level, and if any do, the D.C. Circuit will likely reverse the decision to grant them relief.”

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Human Rights Advocate Felt ‘Cheated’ Observing 9/11 Tribunal

More than a decade after he evacuated his own midtown office in New York City during the Sept. 11, 2011 terrorist attacks, Kenneth Roth traveled to Guantanamo Bay to watch the arraignment of five accused co-conspirators. His reaction? “I couldn’t help but feel cheated.”

When the five men were arraigned on Saturday before a military tribunal, Roth writes in a New York Times op-ed, they were facing prosecution before a type of military commission that “may be ‘new and improved’ from earlier versions, but they are still rigged against the defendants.”

Not only are the 9/11 defendants deprived of fairness protections they would be afforded in a civilian court, Roth writes with detail, but there are major international implications too:

“Their proponents think that military commissions are the tough way to combat terrorism, but they are really a gift to terrorist recruiters. If a conviction is tainted by unfairness and the defendants are railroaded to death, it would generate outrage. Most people would simply grind their teeth and move on, but a small number would be driven into the grasp of Al Qaeda and its successors. And, as we sadly know, it doesn’t take many angry people to launch a horrible terrorist act.”

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Public Access to Secret 9/11 Testimony Sought

The American Civil Liberties Union has formally asked that the American public be allowed to hear testimony from five accused 9/11 codefendants about their experiences at the hands of CIA captors in secret prisons overseas. The defendants, including Khalid Shaikh Mohammed, are to be arraigned Saturday at Guantanamo Bay.

Under the system to be used by the tribunal, a 40-second delay is employed. That is time enough, according to a Miami Herald article, for an intelligence official to punch a white noise button if any of the defendants describe what CIA agents did to them between their capture in Pakistan and their arrival at Guantanamo, several years later. Spectators view the courtroom proceedings from a soundproofed, glassed-in booth.

The challenged practice amounts to censorship, the ACLU contended, saying it was premised on  “a chillingly Orwellian claim” that the accused “must be gagged lest he reveal his knowledge of what the government did to him.”

The 9/11 case about to begin at Guantanamo will “test whether alleged terrorists can get justice before U.S. military tribunals,” a Bloomberg article said.

According to civil liberties advocates, civilian courts would provide greater legal protections — such as the exclusion of evidence tainted by torture — for the five men.

“A prosecution that ultimately fails to measure up to international standards of justice undermines our credibility in the eyes of the world and plays into the hands of those who want to attack us,” said David Glazier, a law professor at Loyola Law School in Los Angeles.

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In Terror Case, Debate Renewed Over Tribunals

Five accused 9/11 terrorists including admitted architect Khalid Shaikh Mohammed will be arraigned Saturday at the Guantanamo Bay Naval Base in what some have called the “prosecutions of the century.” The proceedings are renewing debate over the removal of the case to a military tribunal from a federal courtroom.

A Reuters article previewing the upcoming proceedings noted that “the tribunals have been criticized as a second-class system, rigged to convict, since they were first authorized in 2001.”

Charges lodged against five codefendants  were dropped in 2009 when the Obama administration planned to close the military detention facility in Cuba, eliminate the military commission process for trying terror suspects and prosecute the five in civilian courts in New York. Under a backlash of bipartisan opposition, however, that plan was withdrawn (see Gavel Grab). The charges were refiled last June.

A lengthy and ardent criticism of the upcoming military tribunal proceeding in Salon this week was written by Morris Davis, a retired U.S. Air Force colonel who was chief prosecutor for the military commission at Guantanamo Bay from 2005-2007.

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Commentary: The Lesson of a Terror Trial in Brooklyn

In Brooklyn, a trial is unfolding in federal court for a man accused of plotting to blow up New York City’s subway system in 2009. The trial hasn’t gotten much attention, one scholar said on NPR, considering it has been “an occasion for a convention of terrorism suspects.”

Andrew Rosenthal, editorial page editor for the New York Times, points to the trial for another reason in the newspaper’s Loyal Opposition blog.

He suggests it shows faulty thinking by those politicians who effectively blocked a trial in civilian court of Khalid Shaikh Mohammed, the accused mastermind of the Sept. 11, 2001 terror attacks, and four co-defendants. Next month, the five will be tried before a military commission at Guantanamo. Rosenthal assails the politicians who opposed a New York City trial:

“There is no good reason to believe that the criminal justice system can handle an alleged terrorist who plotted to destroy the subway, but not an alleged terrorist who plotted to destroy the World Trade System. No good reason. The obvious bad reason is politics. Opposing the Mohammed trial was a publicity bonanza for tough-on-terrorism Republicans and a bipartisan group of cowardly members of the New York Congressional delegation.”

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Reinstate Torture Case, U.S. Citizen Asks Supreme Court

Jose Padilla (photo), a U.S. citizen who was jailed for four years  as an “enemy combatant,” is asking the Supreme Court to reinstate his lawsuit accusing top U.S. officials of torturing him. A liberal commentator cited Padilla’s case in saying federal courts have failed to hold executive branch officials accountable for illegal actions undertaken in the name of the “War on Terror.”

Throwing out Padilla’s lawsuit, the Fourth U.S. Circuit Court of Appeals ruled in January that the courts do not have jurisdiction over military detention cases, and that Congress has that jurisdiction, according to a Washington Post article.

In addition, the appeals court panel said that in cases such as Padilla’s, the judiciary should defer to Congress and the executive branch. Litigation such as Padilla’s could ultimately compromise military operations and national security issues, the panel reasoned.

His case has drawn international attention. “Padilla has long been a symbol of the George W. Bush administration’s alleged legal overreach following the September 11 attacks, when hundreds of so-called ‘enemy combatants’ — the vast majority of them foreigners captured in Afghanistan and Pakistan — were detained without formal charges or trial,” an AFP article reported. 

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Times Editorial Scores Path to Military Trial of 9/11 Defendants

A New York Times editorial decries the steps leading up to a planned trial of the accused 9/11 terrorists before a military tribunal as “The Road We Need Not Have Traveled.”

Last week, a senior Pentagon official authorized the trial for Khalid Shaikh Mohammed, the accused mastermind of the terror attacks, and four co-defendants. It likely will be held at Guantánamo Bay (see Gavel Grab).

The editorial labels the military tribunal as “constitutionally flawed” but devotes more attention to what it considers the mistakes of the George W. Bush and Obama administrations, as well as Congress passing a law “prohibiting the use of federal money to try any Guantánamo prisoner in federal court.” The editorial concludes with a references to a speech delivered last week by Brig. Gen. Mark Martins, the chief military prosecutor:

“We hope General Martins’s commitment to justice will persuade a highly skeptical world to accept the legitimacy of these trials; convicting and executing the prisoners after a tainted trial would be a disaster. But after all that has happened, even the best-managed trial will not be able to change the fact that this country has in the last decade accepted too many damaging and unnecessary changes to its fundamental principles of justice and human rights.”

Since the terrorist attacks of 2001, the USA PATRIOT Act and other policies have weakened the historic power of courts to protect our rights and check possible government abuses, Justice at Stake says on its web site. To learn more, see Justice at Stake’s “Courting Danger” report.


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9/11 Defendants’ Military Commission Trial is Planned

Khalid Shaikh Mohammed, the accused mastermind of the Sept. 11, 2001 terror attacks, and four co-defendants will face murder and terrorism charges at a new trial before a military commission, likely to be held at Guantanamo Bay.

The trial was authorized by a senior Pentagon official on Wednesday, according to a Washington Post article.

Charges lodged against them earlier were dropped in 2009 when the Obama administration planned to close the military detention facility in Cuba, eliminate the military commission process for trying terror suspects and prosecute the five in civilian courts in New York. Under a backlash of bipartisan opposition, however, that plan was withdrawn (see Gavel Grab). The charges were refiled last June.

There has been a protracted, and heated, debate over trying the five men in civilian courts versus military tribunals.

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Professor: In Fighting Terror, Success for Checks and Balances

Strong bipartisan support for President Obama’s counterterrorism policies can be explained in part by success of the constitutional system of checks and balances, including the federal courts, a Harvard law professor writes.

“Our constitutional system of checks and balances has worked extraordinarily well in the last decade to legitimize these policies and to generate a national consensus in support of them,” Jack Goldsmith contends in a Washington Post op-ed. He worked in the Defense and Justice departments during the administration of President George W. Bush.

When highlighting the role of the courts, Goldsmith includes the Supreme Court’s ruling that Guantanamo Bay detainees may challenge their detention in U.S. courts; its striking down Bush’s military commissions, which were then revised by Congress; lower court review, and approval, of many Guantanamo detentions; and a special federal court’s supervision of the warrantless surveillance program.

Obama “has continued most of Bush’s policies because other institutions pushed back against Bush’s excesses and then blessed the changed policies,” Goldsmith writes. When Obama pushed too far, he too “felt the sting of these checks.” Goldsmith concludes, about the policies of the Republican president and his Democratic successor:

“[T]wo presidential administrations with starkly different views about executive power and proper counterterrorism tactics ended up in approximately the same place because constitutional forces more powerful than the aims and inclinations of the presidents were at work.”

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Lakhdar Boumediene Reflects on Justice Long Delayed

Lakhdar Boumediene puts a human face on a landmark Supreme Court case about detainees’ rights in a time of terror,  in a New York Times op-ed entitled “My Guantanamo Nightmare.”

Boumediene, a Bosnian citizen, was held in the U.S. military prison at Guantanamo Bay, Cuba from 2002 to 2009. In 2008, the Supreme Court ruled in his case that detainees held at Guantanamo Bay may challenge their detention in U.S. courts, and in 2009, a federal judge ordered Boumediene’s release.

Boumediene, who protests that “I have never been a terrorist,” writes about his incarceration:

“Had I been brought before a court when I was seized, my children’s lives would not have been torn apart, and my family would not have been thrown into poverty. It was only after the United States Supreme Court ordered the government to defend its actions before a federal judge that I was finally able to clear my name and be with them again.”

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