Capture of Bin Laden Kin Renews Debate on Courts vs. Tribunals

The capture of Sulaiman Abu Ghaith, a son-in-law of Osama Bin Laden, has rekindled debate over prosecuting terror suspects in civilian courts versus military tribunals.

On Friday, Mr. Abu Gaith pleaded not guilty in a federal court in lower Manhattan to charges of plotting terror against Americans, the Associated Press reported. U.S. authorities said he was a spokesman for al-Qaida.

The Wall Street Journal reported that some Republicans think Mr. Abu Ghaith belongs before a military tribunal at Guanatamo. “Al Qaeda leaders captured on the battlefield should not be brought to the United States to stand trial,” said Rep. Mike Rogers, chairman of the House Intelligence Committee. “We should treat enemy combatants like the enemy.”

Sen. Kelly Ayotte, R-N.H., said that the terror suspect would become entitled to the rights of a U.S. citizen — including a speedy trial — by being in New York, Politico reported. 


Obama Challenges Defense Bill's Limits on Detainee Transfers

President Obama may have rescinded his threat to veto a defense bill containing restrictions on transferring detainees out of military prisons including Guantanamo Bay, but he attached a signing statement to the bill allowing him to keep the constitutional power to override the law.

Lawmakers in Congress added the limits on detainee transfers in the National Defense Authorization Act of 2013, which was approved in December according to the New York Times.

Obama signed the bill despite his objections regarding detainees. In the statement, he declared that the provision “could interfere with my ability as commander in chief to make time-sensitive determinations about the appropriate disposition of detainees in an active area of hostilities.”

The President promised in his first term to close the prison in Cuba, but has failed to do so. Officials within the government are unsure as to his intentions regarding the signing statement, says the New York Times.

“The administration blames Congress for making it harder to close Guantanamo, yet for a second year President Obama has signed damaging Congressional restrictions into law,” says Andrea Prasow of Human Rights Watch.

Last year, the American Bar Association sent a letter to Obama objecting to the use of signing statements, urging him to veto bills instead if he finds them unconstitutional. The American Bar Association is a JAS partner organization.

Appeals Court Reverses Conviction of Bin Laden's Driver

The terrorism conviction of Salim Hamdan, a driver and bodyguard for Osama Bin Laden, was reversed by the U.S. Court of Appeals for the District of Columbia Circuit.

“When Hamdan committed the conduct in question, the international law of war proscribed a variety of war crimes, including forms of terrorism,” Judge Brett M. Kavanaugh wrote, according to a New York Times article. “At that time, however, the international law of war did not proscribe material support for terrorism as a war crime.”

In 2008, a military commission  convicted Hamdan of  providing material support to terrorism. A Guantánamo  detainee, he was repatriated to his homeland of Yemen. Earlier, Hamdan’s case had paved the way for a Supreme Court decision that struck down the President George W. Bush administration’s first structure for military commissions.


Editorial Partially Applauds Indefinite Detention Ruling

A New York Times editorial, entitled “A Post-9/11 Conundrum,” juxtaposes a federal judge’s ruling on indefinite detention in the name of national security, and a House vote to extend an expansion of federal authorities’ power to conduct warrantless surveillance.

“For 11 years, Americans have struggled to reach a sensible legal balance that protects both national security and civil liberties — an existential challenge made harder by the last president’s wild excesses and abuses of power in the name of combating terrorism. This week, a vote in Congress and a decision by a federal judge, Katherine Forrest, made starkly clear how much that remains a work in progress,” the editorial said.

U.S. District Judge Forrest (photo) struck down a  controversial portion of the recently enacted National Defense Authorization Act (see Gavel Grab). The disputed provision authorizes indefinite military detention for people considered to have “substantially supported” al Qaeda, the Taliban or “associated forces.”

While the editorial had questions about her ruling, it said she was “moving in the other direction” from that taken by Congress.


Judge Strikes Down Indefinite Detention Provision

U.S. District Judge Katherine Forrest of Manhattan has struck down a highly controversial portion of the recently enacted National Defense Authorization Act. The disputed provision authorizes indefinite military detention for people considered to have “substantially supported” al Qaeda, the Taliban or “associated forces.”

Political activists, scholars and journalists challenging the law have voiced legitimate fears  that they could be detained indefinitely over exercises of their First Amendment rights, the judge said, according to an Associated Press article.

“First Amendment rights are guaranteed by the Constitution and cannot be legislated away,” Judge Forrest wrote. “This Court rejects the Government’s suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention.”

Judge Forrest had issued a preliminary injunction, blocking enforcement of the provision, earlier (see Gavel Grab). Her latest ruling is likely to be appealed to a higher court.

New Limits on Access to Detainees are Blocked

The federal government may not restrict lawyers access to Guantanamo Bay detainees who are not challenging their incarceration, a federal judge has ruled.

Chief Judge Royce C. Lamberth of the United States District Court for the District of Columbia issued a “scathing” opinion, according to a New York Times article, that accused the Obama administration of “an illegitimate exercise of executive power.”

“Access to the courts means nothing without access to counsel,” Judge Lamberth wrote, according to a Washington Post report.

For Guantanamo detainees who failed in their challenges to their confinement, the new rules have required their lawyers to sign a “memorandum of understanding” to keep meeting with the detainee clients. In addition, these meetings were “subject to the authority and discretion” of the commanding officer for Guantanamo Bay (see Gavel Grab).

David Remes, a lawyer for detainees, praised the ruling and said the planned new rules were “egregious, because it would have removed the courts from the equation and left the Gitmo commander a law unto himself.”

New Rules for Gitmo Detainees Are Assailed

A New York Times editorial denounced as unconstitutional a new set of rules imposed by the Obama administration on right to counsel for Guantanamo Bay prisoners who are not challenging their incarceration.

The rules’ constitutionality, of course, will ultimately be decided in court. On Friday, a federal judge in Washington expressed skepticism about the restrictions at a court hearing.

“If it ain’t broke, don’t fix it,” U.S. District Chief Judge Royce Lamberth, said, according to an Associated Press article.  “It doesn’t seem to be broken … That’s why I’m reluctant to change it.”

For Guantanamo detainees who failed in their challenges to their confinement, the new rules require their lawyers to sign a “memorandum of understanding” to keep meeting with the detainee clients. In addition, these meetings are “subject to the authority and discretion” of the commanding officer for Guantanamo Bay.

At the hearing, Judge Lamberth signaled his view that the government’s message is, “We’re in charge. Not the court.”


Military Judge Declines to Recuse in USS Cole Trial

U.S. Army Col. James Pohl has declined to step aside from presiding as judge over the death-penalty trial at Guantánamo of Abd al Rahim al Nashiri, accused of masterminding al-Qaida’s 2000 suicide bombing of the USS Cole.

Defense lawyers contended that in Pohl’s post-retirement status, he could be subject to undue influence from the military and also from officers who command him, according to a Christian Science Monitor article.

“My status is no different than any other military judge,” Pohl said in rejecting the defense lawyers’ arguments.

The article said Pohl’s ruling was important in part because he will also preside over two other military commission trials, including that of Khalid Shaikh Mohammed, admitted architect of the 9/11 terror attacks. Reporter Warren Richey explained:

“Because there is only limited legal precedent guiding the newly created military commission process at Guantanamo, Pohl will play a particularly important role in shaping how tribunals will be conducted, such as deciding which pieces of evidence are allowed in the trials, including classified information and details culled from coercive interrogations.”

Boumediene v. Bush: Guantanamo Detainees Trapped in 'Legal Limbo'

Four years after the Boumediene v. Bush decision, the U.S. Supreme Court has done nothing to protect the decision from being “gutted” by the D.C. Circuit Court, argues retired federal District Judge James Robertson. Lyle Denniston writes in SCOTUSblog that the Supreme Court has been unwilling to examine the fact that Guantanamo detainees have been left in “legal limbo.”

Former Judge James Robertson says that captives at Guantanamo are trapped in a situation that gives all the advantage to their captors, and the government. “If the government wants to keep them there, they will be,” he says.

Robertson argues that the problem lies with the “inability” of the liberal faction on the Supreme Court to convince Justice Anthony Kennedy to agree to oversee the actions of the Circuit Court. The Supreme court seems to have “washed its hands” of the issue, he says.

According to the blog, Boumediene was decided in 2008 by a 5-4 vote, which gave Guantanamo Bay detainees the right to seek release through habeas petitions in federal District Courts in Washington for the first time.

The Court left it to District Court judges to decide how to implement the ruling. District judges would rule in favor of the detainees in a majority of cases, only to have the decisions “reversed repeatedly by the Circuit Court.” Due to this fact, no Guantanamo prisoner has won outright release as a direct consequence of a District Court’s order. (more…)

Editorial Decries Court's Denial of Gitmo Detainees' Appeals

A New York Times editorial decried the Supreme Court’s recent refusal (see Gavel Grab) to hear appeals from seven foreign nationals challenging their detention at Guantánamo Bay.

“With no dissents in the denials, it is devastatingly clear that the Roberts court has no interest in ensuring meaningful habeas review for foreign prisoners,” the editorial declared.

With its 2008 ruling in Boumediene v. Bush, the high court ruled that terror suspects held at Guantánamo Bay may challenge their detention in U.S. courts.

Over four years, however, the justices “have left it to the Court of Appeals for the District of Columbia Circuit to devise rules for the Guantánamo habeas cases,” the editorial protested, and the lower court has set rules  “that are unjustly one-sided in favor of the government.” To learn more about the appeals court’s record, see this Gavel Grab post.

“In refusing to correct the appeals court’s misguided rulings,” the editorial said, “the justices fail to support important principles proclaimed in Boumediene and diminish their own authority.”