Tuesday, April 30, 2013

Students in Compton, CA offer new resources


Here's the message from the counselor:

My name is Joan - I'm a counselor at Compton Community Center. The kids have been doing research for a project on obeying laws and during their searching for resources, they found your page http://pegc.us/links.html

They also found a great website,  http://www.cctvcamerapros.com/Criminal-Justice-Links-s/399.htm that's has a long list of resources on criminal justice ; would you mind adding it to your page? We think it would be a great help for others and I would love to show the kids that their hard work paid off.

I hope that you find their newly discovered resource useful. Shoot me an email if you get a chance to update and thanks again for having such a nice site.

Enjoy your week !

Monday, March 26, 2012

Haridimos Thravalos on Hamdan, Conspiracy, and History

From Benjamin Wittes, Lawfare

It isn’t every day that someone sends me a memo outlining how a four-justice plurality of the Supreme Court got a key historical point wrong in a major case–much less does so convincingly. But that is what the following article by one Haridimos V. Thravalos claims about the discussion in the plurality opinion in Hamdan concerning whether conspiracy has been historically considered a war crime triable by commission. This point is important; indeed, as Thravalos explains, it is currently being contested in the courts. How those cases turn out will determine whether the crime will be available to prosecutors in military commission cases going forward. 

Sunday, February 12, 2012

The Green(wash)ing of Guantanamo Bay


Please read the original to honor the author. -ed.

The greening of Guantanamo Bay

GUANTANAMO BAY NAVAL BASE, Cuba – Solar-powered lights serve as sentries where U.S. Marines once faced-off along the Cuban frontier. A team of Navy cops now rides bikes rather than gas-guzzling patrol cars in the searing Caribbean sunshine.
In this remote corner of Cuba that is better known as a lab for Pentagon justice and interrogation, the U.S. Navy has been quietly engaging in more low-profile offshore experimentation – seeking environmentally friendly alternatives to reduce its whopping $100,000 a day fossil fuel dependence.
It’s a Navy-wide goal to halve dependence on fossil fuels by 2020. But the greening of Gitmo, as this base is known, comes with a particular challenge.
The base that today houses 6,000 people makes all its own electricity and desalinates its own water. It has done so ever since the 1960s when Rear Adm. John Bulkeley, then base commander, faced down Fidel Castro and cut off the naval station from Cuba’s water and power supply.
Everything from diesel fuel to spare parts arrives by ship or aircraft, more than tripling the price of power, according to base estimates.
“From my perspective certainly the greening of Gitmo is important,” says U.S. Navy Capt. Kirk Hibbert, the base commander. National security is paramount, he said, but the Navy mandate to curb consumption “has an effect on almost everything we do here.”
Hibbert’s the man who put a pair of Navy cops on bikes to patrol the base rather than sit inside air-conditioned sport utility vehicles, an $800 a year savings that sends a symbolic message. And it’s been on his watch that a contractor is building a huge solar array behind the high school.
Guantanamo can strike visitors as a small slice of Americana, with its trailer parks and tract housing, a hilltop church, McDonald’s, cinemas and schools. But it’s a base behind a Cuban minefield with the Navy controlling who may come and who may go and who gets water and electricity.
Commanders like to compare it to a ship at sea – except this one is towing the most expensive prison on earth. By base estimates, it costs $32,000 a day, or $11.7 million a year, to keep the lights on and water flowing to the 171 captives at the Pentagon’s prison camps and 1,850 U.S. forces and contractors who work there.
The Defense Department set up the detention center a decade ago, temporarily, at a time when the Navy was already tinkering with energy efficiencies.
In 2005, a Massachusetts firm installed four 270-foot-tall windmills on Guantanamo’s highest hill with visions of capturing up to 25 percent of the base’s power consumption from the Caribbean trade winds. But that analysis did not consider the never-ending nature of detention operations here, a venture that tripled the base population and sent construction costs soaring from the coastal prison camps to the crude war court compound built atop an abandoned airfield.
“We get a lot of attention here because we are such an expensive base in the Navy,” said Arthur Torley, a senior civilian worker at Guantanamo’s version of a small town Department of Public Works. “Gitmo, to me, is even more of a priority because of the expense. They would much rather spend money fixing planes and ships than dumping fuel into Gitmo.”
So he’s got his workers using a fleet of 24 solar-powered minis, squat little electrical vans with panels on their roofs.
They arrived this summer, and can go about 35 miles before needing a charge, just about right for a week’s worth of work on the 45-square-mile outpost.
Hibbard cautions against seeing the base as a site for random experimentation, of “just taking stuff and throwing it up against the wall and seeing what sticks.” Because it’s remote, and because importing goods and services is so expensive, the Navy engages in “a lot of analysis” ahead of time to figure out what might work.
But Guantanamo’s location – in the tropics straddling a bay – does make it fertile ground for innovations such as these:
Two Florida firms, Solar Source of Tampa and TerraSmart of Fort Myers, are the contractor and supplier of a 1,200-panel solar array behind the base high school, just below the scrubby nine-hole golf course. It’s meant to produce 430,000 kilowatt hours a year and power the base’s popular no-charge gym, which doubles as a hurricane shelter.
There also have been email exchanges about whether the base could grow algae, as biofuel, inside a floating field of waste-water discharged into Guantanamo Bay. “NASA scientists are exploring this technology,” says the base spokesman Terence Peck. “No decisions have been made for experimental locations as of yet.”
In 2007, a public works officer bought a bioreactor off the Internet and tried his hand at extracting fuel from used cooking oil. It was abandoned after eight months, according to environmental director Mike McCord, as too labor-intensive and potentially dangerous because of the chemicals needed for the conversion process.
The Navy put in artificial turf at Cooper Field, the outdoor sports complex, to save on the fuel for desalinating water for the baseball diamond and soccer pitch.
Guantanamo is also the first Navy base in the southeast region – stretching from Fort Worth, Texas, to Charleston, S.C., to Cuba – to introduce mock utility bills.
Since the military picks up the troops’ tab, the faux bills are meant to shock sailors and their families into conserving by estimating base household power costs. They come in at nearly 3.5 times the price of an average U.S. household.
The bills have had the desired “wow!” effect. Guantanamo human resources worker Ambroshia Jefferson-Smith felt her stomach turn in October when she got her $1,021.79 mock bill for a month of power at the single-story ranch-style house she shares with her 15-year-old son, five television sets and a cat.
“It’s like coming home when you have been on holiday and getting that big credit card bill,” she said. “You don’t see anything tangible there, and you realize you have consumed a lot of electricity and water.”
By her estimate, the bill would be seven times the sum she’d pay back home in Mississippi. So now she makes sure all the TVs are turned off, including the one on the backyard patio, and lowers the AC before she heads to work.
Conservation awareness is a work in progress. And the mock bills, like the Navy cops on bikes, are largely symbolic. The prison camps commander, the most senior officer on the base, has one of the biggest houses – and one of the biggest household bills, $2,093.67 in December, one of the coolest months in Cuba.
Another military unit here has joined the movement.
The Marine major in charge of the unit that monitors the 17.4 miles of fence line surrounding the base agreed to let the Public Works department replace a third of the floodlights with solar-powered LED lights. They’re still on the electrical grid in case of too many gloomy or rainy days in a row. But they haven’t needed to use the grid yet.
“I don’t know what they’re doing along the Mexican border,” Torley said. “But the Marines were on board with all the energy stuff. They couldn’t tell a difference.

Saturday, January 14, 2012

Latif v. Obama: Redaction Riddle Resolved: The Jurist

Latif v. Obama: Redaction Riddle Resolved 

JURIST Guest Columnists Mark Denbeaux, Nick Stratton and Lauren Winchester of Seton Hall University School of Law say the right to a meaningful habeas corpus proceeding by Guantanamo detainees has been complicated by a recent decision making it more difficult for detainees to challenge the evidence against them...

With the US Court of Appeals for the District of Columbia Circuit decision in Latif v. Obamaon October 14, 2011, the right to a meaningful habeas corpus proceeding established inBoumediene v. Bush is now a nullity. By solving the puzzle caused by the voluminous redactions in the 112 page opinion, understanding prior habeas case law, and pondering evidentiary standards, it became apparent how flimsy the record was upon which this crucially important decision rests. A habeas petition can now be denied when the government relies on a single document — an interrogation report — compiled in what the dissent describes as "the fog of war." In addition, after Latif, district court judges are required to view reports by interrogators containing translated material as accurate, shifting the burden to the detainee to prove inaccuracy. Subject to this high burden and with limited resources, the detainee will be left challenging the credibility of the subject of the interrogation — himself. Further, through muddled vocabulary and misapplied hypotheticals, the majority hides the fact that the presumption's application to Latif's interrogation report will prevent him from challenging the only evidence against him. The effect of the presumption on all detainees who are recorded as having given incriminating statements in their interrogations is the creation of a Catch-22.

How to Overturn a District Court Judge Who Did Not Clearly Err

Since the outset of habeas proceedings, district court judges have assessed the reliability of intelligence documents against claims of mistranslation and lack of corroboration. The DC Circuit has upheld a number of these findings (Barhoumi v. ObamaAl Alwi v. ObamaKhan v. Obama), and even overturned one reliability finding (Bensayah v. Obama). Dissenting Judge David Tatel, however, noted that Latif contains a feature not present in the others: the government lost because the district court found the dispositive government report to be unreliable.

Adnan Farhan Abd Al Latif is a Yemeni citizen who was seized by Pakistani authorities and held at the Guantanamo Bay detention facility since January 2002. In his July 21, 2010 decision, Judge Kennedy granted Latif's habeas petition, concluding that the government failed to demonstrate Latif's detention is lawful because it primarily relied on a document that was not sufficiently reliable, the document had no corroboration, and Latif's alternative story to explain his travel was at least corroborated by medical records. Instead of reviewing Judge Kennedy's thorough findings of fact for clear error, the DC Circuit reviewed de novo his decision not to give the government document a presumption of accuracy. In so doing, the DC Circuit avoided ruling on the merits of Judge Kennedy's determination that the report was unreliable. The majority disguises the fact that it could not overturn Judge Kennedy on the merits by creating a new, and confusing, rule of law.

The Meaning of the Presumption and its Practical Application in the Guantanamo Context

The DC Circuit's mandated use of the presumption of regularity in intelligence reports is a covert attempt to circumvent the intent of Boumediene. According to the majority, the presumption presumes the interrogator accurately recorded and compiled the report, though it does not presume the information from the third party source is true. In Boumediene, the Supreme Court stated several reasons why Combatant Status Review Tribunals (CSRTs) fell short of the procedural protections of habeas proceedings. One reason was that the CSRTs accorded a presumption of validity to government evidence. Although the presumption applied by the DC Circuit is that of regularity (and sometimes accuracy), since there is no practical way for a detainee to rebut the presumption in the context of a report of his own interrogation (see paragraphs below), what was just a presumption of accuracy is, for all intents and purposes, a presumption of validity. Thus, Latif renders Article III habeas proceedings as limited as the flawed CSRT process.

To illuminate how the presumption works, the majority utilizes a hypothetical that does not properly apply to Latif's case. The hypothetical depicts a government intelligence officer taking the statement of a third party informant. The majority would have us presume that the officer accurately wrote down what the third party informant said, though not presuming the informant's statement was itself true. This seems to make sense until you apply it to the facts of Latif. A fair and thorough reading of the opinion suggests that the document and information being redacted is a report from an interrogation of Latif that contains opponent-party admissions. The interrogation likely involved an interrogator, a translator, and Latif. Thus, the third party informant in the majority's hypothetical is Latif himself.

The likelihood that this intelligence document is an interrogation report with admissions is confirmed by the fact that the Latif opinion redacts part of the un-redacted Al-Bihani opinion. The Al-Bihani opinion discusses how statements in interrogations are treated as opponent-party admissions and that translation does not affect their status as an admission, despite technically rendering the statements as hearsay. The incriminating statements at issue likely have something to do with Latif's travels and reasons for being at certain locations at certain times based on the district court's finding that his alternative story was plausible.

Applying the presumption of accuracy to the interrogation report, the document upon which the government's entire case turns, the district court will have to deny Latif's petition. If the presumption is applied, the report is an accurate account of what the detainee said through a translator. Therefore, under Al-Bihani, we have an admission from a party-opponent in an accurate government document that does not lose its status as an admission even though a translator was used. This means the trier of fact is weighing an accurate account of an admission against the detainee's word and any other evidence he presents. The accuracy of the report (and therefore the accuracy of the recording of this admission) will not be questioned by the trier of fact unless and until the detainee presents at least a preponderance of the evidence rebutting the accuracy. Practically speaking, the detainee will not have any evidence beyond his own word to rebut this presumption of accuracy. Therefore, the trier of fact will likely be weighing an admission (usually weighed very heavily) against whatever evidence the detainee may be able to produce.

Contrast the result if the presumption is not applied. The accuracy of the report is automatically in question, and the government must prove it is accurate. The detainee can give his account, and the trier of fact will balance what is before him to determine whether or not the report is an accurate account of the interrogation. By affording the detainee the opportunity to challenge the accuracy (and making the government prove the accuracy) at this lower standard, the trier of fact will necessarily view and scrutinize more evidence and make a determination based on the whole picture. If the report's accuracy is challenged, the admission is challenged, and the trier of fact does not have to afford the admission so much weight. Potential errors in interrogation reports would likely be brought up in all detainees' habeas cases, so the presumption would likely never apply to these types of government documents; however, this only requires the government to corroborate its reports and supply enough evidence so it does not have to rely solely on one report.

Even in an everyday situation where information and evidence is much more readily available, a court may choose not to apply such a presumption. Consider a car accident where an officer comes on scene and one party only speaks Spanish, while the officer does not. Fortunately, another person on the scene speaks fluent Spanish and agrees to facilitate a conversation between the officer and the party. The officer's report of the conversation includes an admission from the party that he did not slow down when the light turned yellow even though he probably could have stopped. Leaving hearsay issues aside (hearsay is automatically allowed into evidence in all Guantanamo habeas cases) would the court automatically presume the accuracy of the report in this situation, or would the court consider using its discretion to not apply the presumption, and balance all of the factors and evidence available?

The Catch-22

Applying the presumption of accuracy, Latif is faced with a Catch-22. If the report is presumed accurate, then his only option is to attack the reliability of the non-government source, himself. Under the presumption of accuracy, Latif must show by at least by a preponderance of the evidence, that the interrogator did not accurately record or collect the information in the interrogation report. In order to do so, his attorneys would need to present evidence that, for practical purposes, is unavailable to them because there is little likelihood that the government will allow the attorneys to interview the interrogator and translator, and the existence (or continued existence) of a tape of the interrogation is highly doubtful. Instead, the sole evidence presented will be the detainee's own testimony that he did not say what is in the report, and in doing so he puts his own credibility on the line. Unable to rebut the presumption, Latif will need to argue that the underlying truth of the report is in question. However, the underlying truth goes to Latif's own admissions and statements. In order to attack his admission, Latif must argue either that he himself was not credible at the time (thus undermining his current credibility) or that other circumstances, such as torture or coercion, led to his admission (which the federal courts have been loath to acknowledge or consider in habeas proceedings).

If a document is presumed to be accurately recorded, all statements within the document are presumed to have been said. Assuming Latif cannot rebut the accuracy, the only argument he has is to say that what he is reported to have said is false in substance. He can no longer argue that he did not say those words; instead he must prove the words he said were lies. The presumption requires that Latif call himself a liar for saying something he did not say, because he cannot adjudicate the fact that he never uttered the words. And this conundrum does not just apply to Latif; all detainees have interrogation reports, and many detainees will face this problem. The majority glosses over the issue by discussing "non-government sources" rather than the reality that detainees, in order to prove their testimony is credible enough to rebut the presumption, must prove they were incredible in the first instance.

The consequence of the DC Circuit's decision in Latif is an opinion that singlehandedly destroyed the Great Writ for Guantanamo detainees. The Latif decision, and effective repeal of Boumediene, rests on a single interrogation report, translated and uncorroborated, now required to be viewed through a blurry lens of forced legitimacy. In the end, however, there is no legitimacy in a system that creates insurmountable hurdles to the ultimate goal — discerning the truth and ruling upon it.
Professor Denbeaux is the Director of the Seton Hall Law School Center for Policy and Research, which is best known for its dissemination of the internationally recognized series of reports on the Guantánamo Bay Detention Camp. The Guantánamo report series is primarily produced by Seton Hall Law students of all levels. Nick Stratton and Lauren Winchester are research fellows for the Center.

Suggested citation: Mark Denbeaux, Nick Stratton & Lauren Winchester Latif v. Obama: Redaction Riddle Resolved, JURIST - Forum, Jan. 14, 2012, http://jurist.org/forum/2012/01/denbeaux-stratton-winchester.php.

This article was prepared for publication by Ben Klaber, a senior editor for JURIST's academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org

Thursday, December 29, 2011

Detainee Legal Mail to Be Reviewed

Yet another slam against the most basic of rights, attorney-client privilege. What the government does to detainees, it will do to citizens as well. Recall the passage of NDAA recently, which allows detention of American citizens without trial. -ed.
The prison commander at Guantanamo Bay issued new rules allowing prison staff to examine mail between military-commission defendants and their lawyers, renewing a dispute with defense attorneys who say communications with their clients should remain confidential.
In a 21-page memorandum signed Tuesday, Rear Adm. David Woods said that teams—which include Defense Department attorneys and intelligence and law-enforcement personnel—assigned to review attorney-client correspondence for "physical contraband" such as paper clips could also seize and keep written materials if they "appear to violate" restrictions.
Adm. Woods began tangling with defense attorneys soon after taking command earlier this year at the prison on the U.S. naval base in Cuba where suspected terrorists are held. He directed staff to seize the mail bins of detainees expected to face military-commission trials, including Khalid Sheikh Mohammed and four others accused of organizing the Sept. 11, 2001, terrorist attacks.
In a separate case involving the review of detainee mail, a military judge at Guantanamo ordered prison officials in a ruling last month to stop reading mail between Abd al Rahim al Nashiri, the alleged planner of a 2000 attack on the USS Cole, and his attorneys. The military judge, Col. James Pohl, said that prison staff may review Mr. Nashiri's mail "only to ensure each page in the envelope is properly marked" as legal mail.
Defense attorneys criticized Adm. Woods's new rules, saying they could allow authorities to review drafts of legal motions or evidence they may wish to share with their clients.
"Our clients are being charged with capital offenses," said Cmdr. Stephen Reyes, a military attorney who is representing Mr. Nashiri. "They have to be certain that the attorney-client privilege is kept."
Cmdr. Reyes said he believed the new order applied to the Nashiri case. However, a Guantanamo spokeswoman said it didn't, because Mr. Nashiri is covered by Col. Pohl's ruling regarding his mail. Col. Pohl's ruling doesn't apply to other detainees, she said. The five detainees accused of planning the Sept. 11 attacks have no judge yet because charges against them haven't been finalized.
Adm. Woods's memorandum says the new rules are necessary for "safety and security" on the base. They define broad categories of information that detainees may not receive. However, the document also appears to include various exceptions.
The dispute is "symptomatic of the problems" created by military-commission trials, which Congress authorized to prosecute suspected terrorists without affording them rights required by federal courts, Cmdr. Reyes said. "Basic questions like this are already answered in federal court," he said. "Here, we're still arguing about it."
Write to Jess Bravin at jess.bravin@wsj.com