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

Sunday, December 25, 2011

Will We Turn the UN Charter Into a Scrap of Paper?

By Howard Meyer

March 2003

“Just for a scrap of paper Great Britain [is] going to war,” Germany’s chancellor, Theobold von Bethmann-Hollweg complained as the First World War began. The “scrap of paper” was the treaty that Germany disregarded when it invaded Belgium.
Because of such dismissal of international agreements, the esteem that Germany had enjoyed until then among neutral nations quickly changed to hostility and fear. Britain and France exploited the “scrap of paper” remark in the United States, where there then was respect for international treaties, which the 1787 Constitution had elevated to the “supreme Law of the Land.”
Today we must ask, is the United States about to treat the Charter of the United Nations as a scrap of paper? We would be doing so if, without the authority of the U.N. Security Council, the administration were to launch American armed forces against Iraq.
Please read the rest of the article here.

See Doonesbury on Leaving Iraq here. -ed 

Signing Statement on the Budget Bill

Please read the post at the link below, Wells C. Bennett's excellent Lawfare Blog.  Congress is once again passing bills prohibiting the government from using Federal funds to transfer Guantanamo detainees to the US or other countries. Obama objects.

Congress's insistence on passing these bills is canny. It takes 2/3s of the Senate to override a law, and you know that that will not happen anytime soon. -ed

Text from the President's Signing Statement:

I have previously announced that it is the policy of my Administration, and in the interests of promoting transparency in Government, to indicate when a bill presented for Presidential signature includes provisions that are subject to well-founded constitutional objections. The Department of Justice has advised that a small number of provisions of H.R. 2055 raise constitutional concerns.
In this bill, the Congress has once again included provisions that would bar the use of appropriated funds for transfers of Guantanamo detainees into the United States (section 8119 of Division A), as well as transfers to the custody or effective control of foreign countries unless specified conditions are met (section 8120 of Division A). These provisions are similar to others found in the National Defense Authorization Act for Fiscal Year 2012. My Administration has repeatedly communicated my objections to these provisions, including my view that they could, under certain circumstances, violate constitutional separation of powers principles.  In approving this bill, I reiterate the objections my Administration has raised regarding these provisions, my intent to interpret and apply them in a manner that avoids constitutional conflicts, and the promise that my Administration will continue to work towards their repeal.

Christmas Thoughts for Omar Khadr, Still Held at Guantánamo

A Chilling Dismissal

Judge dismisses ex-captive's damage suit

Likely an innocent man, Abdul Rahim Abdul Razak Al Janko was held for 7 years in Guantánamo. The judge's holding in this case should give anyone pause regardless of political orientation. First, the judge calls Janko's captivity mere collateral damage from a "war." A partisan group in Afghanistan had supported groups such as Al Qaeda. Afghanistan certainly hadn't declared war on the United States. The Declaration of War on Afghanistan, illegitimate as it was, has denied this man eight years of his life, and likely health problems that will shorten his life expectancy. His family's wellbeing has certainly suffered in his absence. That's a lot of damage. Federal Judge Richard Leon says, well, too bad so sad.

Janko's is a sorrowful tale. First he was captured and tortured by Al Qaeda, whose operatives accused him of being an American spy, then he was held at Guantánamo Bay from 2002 to 2009. 
Read more here: 

"War, by its very nature, victimizes many of those caught in its wake. Innocent civilians are invariably killed, and sometimes even mistakenly imprisoned. Our legal system was never designed to provide a remedy in our Courts for these inevitable tragedies, especially in a conflict like this where terrorists cunningly morph into their surroundings."- Federal Judge Richard Leon.

Tuesday, December 6, 2011

National Defense Authorization Act for Fiscal Year 2012: US Senate Removes Key Civil Liberties Protections from US Citizens

S.1867 passed on December 1, 2011, will live in infamy.

I popped off about it right away. US Senate Votes to Repeal Key Civil Liberties Act.

As did many other people who saw the same terrible things I did in this bill.

As of December 6, 2011, President Obama renewed his threat to veto the bill. Not because it was too broad, no. Rather, the veto threat comes because it did not give the Chief Executive enough discretion.

This came from a correspondent.
The movie "The Siege" is based on what can happen when the Posse Comitatus Act is overruled by the president.
it was made in 1998 and does a pretty good job of forecasting today's events.

The bill emerged from the Senate Armed services Committee without a hearing on the military detention provisions.
How convenient for the hawks!

Boumediene Resources 2011

Sunday, December 4, 2011

High Court Declines Three Gitmo Detainee Appeals

April 2011

[snip] posted by Olivia LaRosa
(CN) - The Supreme Court on Monday rejected petitions from three Guantanamo Bay detainees who say that they have been afforded only toothless attempts for habeas review of their cases. It deferred its answer on a fourth case.     The three rejected appeals stem from the detentions of Fawzi Khalid Abdullah Fahad Al Odah, Ghaleb Nassar Al-Bihani and Adham Mohammed Ali Awad, who each lost their appeals in the D.C. Circuit. In addition to ensuring that the detainees in question stay at Guantanamo, the mostly conservative D.C. Circuit judges have not ordered the release of any other detainee.

Scorched Earth begins at Gitmo

Yeah yeah, they get steaks at Guantanamo.

An article in opposition to the Geneva Conventions; read their talking points for later reference!

Scorched Earth begins at Gitmo

Posted by Olivia LaRosa

Uthman Resources 2011


By Benjamin Wittes

Uthman Abdul Rahim Mohammed Uthman, a Guantanamo habeas petitioner, has filed a cert petition, asking the Supreme Court to review the D.C. Circuit’s March decision in his case. The cert petition presents two questions for review: 
1. Whether the Authorization of Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (‘‘AUMF”), authorizes the President to detain, indefinitely and possibly for the rest of his life, an individual who was not shown to have fought for al Qaeda, trained to fight for al Qaeda, or received or executed orders from al Qaeda, and was not claimed to have provided material support to al Qaeda. 
2. Whether the AUMF, as applied by the court of appeals for the D.C. Circuit, violates the command of Boumediene v. Bush, 553 U.S. 723, 768 (2008), that “[t]he habeas court . . . [will] . . . conduct a meaningful review of . . . the Executive’s power to detain” an individual, and violates the Suspension Clause, U.S. CONST. art. I, § 9, cl. 2. 
The petition presents a direct, frontal attack on the manner in which the D.C. Circuit assesses whether a detainee is “part of” an enemy group. Its principal reason for granting the writ begins as follows:

Saturday, December 3, 2011

Latif Resources 2011
Benjamin Wittes

Posted by Olivia LaRosa
Any serious effort to analyze this case must be cautious. While I have strong feelings about the decision, they are tentative ones. The number and scope of redactions in critical places is simpy too high to make confident assertions about the merits of the opinion. I am relatively certain that I agree with Judge Tatel. But as I said in an earlier post, this judgment may be influenced to some degree by the fact that Judge Tatel–either intentionally or by luck–did a far better job than did Judge Brown in writing his opinion in such a manner that the government’s redactions would not dismember it. The result is that his argument reads more cohesively–though there are, to be sure, still many pages that are impossible to parse. 
Here is my best effort to unpack the dispute: 
Judge Brown, writing for herself and Judge Karen LeCraft Henderson, declares that Judge Kennedy’s opinion has “three errors [that] require us to vacate that decision. 
First, the court failed to accord an official government record a presumption of regularity. 
Second, the district court failed to determine Latif’s credibility even though the court relied on his declaration to discredit the Government’s key evidence. See Al-Adahi v. Obama, 613 F.3d 1102, 1110 (D.C. Cir. 2010). 
Third, the court’s unduly atomized approach to the evidence is one we have rejected. . . . We remand so the district court can evaluate Latif’s credibility as needed in light of the totality of the evidence, including newly available evidence.” (Judge Henderson also writes separately to say that she would not bother with a remand but would reverse Judge Kennedy outright.)

War Court Website Leaves Out Key Details

Kindly go to their site to read this important story. For starters, they forgot to include Boumediene. ~Olivia LaRosa

The legal implications of the al-Awlaki assassination

By Tom Carter - World Socialist News Network
10 October 2011

Posted by Olivia LaRosa
In September 30, 2011, the Obama administration, through its military and intelligence apparatus, assassinated US citizen Anwar al-Awlaki in Yemen.
The purpose of this essay is to analyze the legal implications of the assertion by the Obama administration of the power to assassinate US citizens anywhere in the world.
From the standpoint of US and international law as it has developed historically, the killing of al-Awlaki is entirely illegal. Extrajudicial executions violate nearly every fundamental democratic legal protection. 
At the request of the Obama administration, a lawsuit filed on al-Awlaki’s behalf was thrown out of US courts in September of last year on the basis of authoritarian precepts far exceeding any precedent in the country’s history. The decision in that case, left undisturbed, clears the way for the extrajudicial liquidation of opponents of the US government and, ultimately, for presidential dictatorship. 
Anwar bin Nasser bin Abdulla al-Awlaki was born on April 21, 1971 in Las Cruces, New Mexico in the US. He maintained dual citizenship in the US and Yemen. 
Conflicting accounts are given of al-Awlaki’s personal and political history. On the one hand, the US government alleges that he was a “senior recruiter for Al Qaeda” who was “directly involved” in various violent acts over the past two decades, including the Fort Hood shootings, the attempted Christmas Day “underwear bombing,” and others. 
On the other hand, Al-Awlaki presented himself as an unaffiliated religious scholar who, while advocating “jihad against the West,” claimed never to have participated in or advocated terrorism. Ultimately, no allegation against al-Awlaki was ever tested or proven in court.

Wrestling with rights; Everyone deserves right to fair trial

Posted by Olivia LaRosa

On Tuesday, Republican Sens. John McCain, Ariz., and Rand Paul, Ky., went head to head about an amendment to a proposed defense authorization bill.
The amendment in question would potentially deny a civilian trial to American citizens who have been suspected of terrorism.
According to The Hill, McCain argued that any "individual, no matter who they are, if they pose a threat to the security of the United States of America, should not be allowed to continue that threat."
But how does denying a citizen of the U.S. the constitutional right to a civilian trial help to ensure that a threat does not continue?
In fact, the U.S. Constitution guarantees that anyone, citizen or not, has the right to a civilian trial. This was correctly interpreted by the Supreme Court in Boumediene v. Bush in 2008, ruling that the writ of habeas corpus applies to Guantanamo Bay detainees.
From a philosophical standpoint, it would be unjust to deny rights to non-U.S. citizens. The Bill of Rights is based on the idea of natural rights, which apply to every human based upon their nature.
To deny noncitizens the rights in the Bill of Rights would be to deny the existence of natural rights altogether. Instead, rights would not come from man's nature but from the government where that person lived. This would make rights arbitrary and subject to the whim of the politicians in power.

Susan Collins spreads central myth about the Constitution

Posted by D. Lagutaris aka Olivia LaRosa

RE: Boumediene v. Bush

First, the U.S. Supreme Court, in 2008, issued a highly publicized opinion, in Boumediene v. Bush, which, by itself, makes clear how false is the claim that the Constitution applies only to Americans.  The Boumediene Court held that it was unconstitutional for the Military Commissions Act to deny habeas corpus rights to Guantanamo detainees,none of whom was an American citizen (indeed, the detainees were all foreign nationals outside of the U.S.).  If the Constitution applied only to U.S. citizens, that decision would obviously be impossible.  What’s more, although the decision was 5-4, none of the 9 Justices — and, indeed, not even the Bush administration — argued that the Constitution applies only to American citizens.  That is such an inane, false, discredited proposition that no responsible person would ever make that claim.

Friday, December 2, 2011

US Senate Votes to Repeal Key 1878 Civil Liberties Act

Please see the original at

Union Army rests while hunting Rebel guerrillas
By Olivia X. LaRosa,

November 29, 2011 Oakland CA

My head is spinning. Sixty US Senators just voted for a bill that allows citizens to be detained without due process of law. (1) The military is assigned the authority to manage these US citizens as it pleases, out of the public eye. Likely many of them will end up in private prisons without recourse to any legal remedy.
It kinda feels like a military-industrial-congressional complex coup.
Until now, I always thought that the Supreme Court would overturn such a law based on the precedent of Posse Comitatus Act. Now, I worry.
The Posse Comitatus Act (2) was enabled in June of 1878. It forbids local law enforcement to call on the Army or Air Force to enforce the laws of the land.
The Act was passed after the Tilden/Hayes election compromise, which heralded the end of Reconstruction. Federal Troops had remained stationed in the former Confederacy until 1877. They were withdrawn after Rutherford B. Hayes became President, as part of the Faustian bargain cut to give Hayes the nod.
The Posse Comitatus Act protects states and inhabitants from the possibility of a military coup as well as limiting the imprisonment of political opponents.
Looks like we lost that one, folks.

Ten Years of Guantanamo Demands Our Action and Our Outrage

Please read the entire article by Frida Berrigan at, formerly at the link above.
I start with all this because I have been thinking about Guantanamo. The notorious and often forgotten gulag is in the news again this week because the Senate voted on Tuesday to retain a provision within the National Defense Authorization Act that would allow the military detain terror suspects on U.S. soil and hold them indefinitely without trial. In addition, the measure—which passed in a bipartisan show of fear-mongering and brutality—would close the door to civilian trials for terror suspects and place restrictions on resettling the dozens of men at Guantanamo who have been cleared for release.

Deranged US Senate Votes For Military Detention Of All Terror Suspects And Permanent Guantánamo – OpEd

Written by: Andy Worthington

December 2, 2011
Yesterday the shameful dinosaurs of the Senate — hopelessly out of touch with reality, for the most part, and haunted by specters of their own making — approved, by 93 votes to 7, the passage of the National Defense Authorization Act (PDF), which contains a number of astonishingly alarming provisions — Sections 1031 and 1032, designed to make mandatory the indefinite military detention of terror suspects until the end of hostilities in a “war on terror” that seems to have no end (if they are identified as a member of al-Qaeda or an alleged affiliate, or have planned or carried out an attack on the United States), ending a long and entirely appropriate tradition of trying terror suspects in federal court for their alleged crimes, and Sections 1033 and 1034, which seek to prevent the closure of Guantánamo by imposing onerous restrictions on the release of prisoners, and banning the use of funds to purchase an alternative prison anywhere else. I have previously remarked on these depressing developments in articles in July and October, as they have had a horribly long period of gestation, in which no one with a grip on reality — and admiration for the law — has been able to wipe them out.

The four sections are connected, as cheerleaders for the mandatory military detention of terror suspects want them to be sent to Guantánamo, and have done, if I recall correctly, at least since Umar Farouk Abdulmutallab, the failed Christmas plane bomber in 2009, was arrested, read his Miranda rights, and interrogated by the FBI. Recently, Abdulmutallab, who told his interrogators all they wanted to know without being held in military custody — and, for that matter, without being tortured, which is what the hardcore cheerleaders for military detention also want — was tried and convicted in a federal court.

Hundreds of other terror suspects have been successfully prosecuted in federal court, throughout the Bush years, and under Obama, but supporters of military custody like to forget this, as it conflicts with their notions, held since the aftermath of 9/11 and the Bush administration’s horrendous flight from the law, that terrorists are warriors. Underpinning it all is the Authorization for Use of Military Force (AUMF), the founding document of the “war on terror,” passed the week after the 9/11 attacks. This authorizes the President to pursue anyone, anywhere who he thinks was involved in the 9/11 attacks, and it is a dreadfully open-ended excuse for endless war whose repeal I have long encouraged, but which some lawmakers have been itching to renew, even after the death of Osama bin Laden, and the obvious incentives for the winding-down of the ruinous, decade-long “war on terror.”

The fundamental opposition to the provision for the mandatory military custody of terror suspects

Depressingly, when it came to passing the Act, the world was treated to the unedifying spectacle of lawmakers arguing about whether the existing law — the AUMF, plus the Supreme Court’s 2004 ruling in Hamdi v. Rumsfeld that it authorizes detention until the end of hostilities — actually applies to Americans, and whether, on that basis, this new legislation does too. Their compromise was that it would authorize whatever already exists, which only made them look rather stupid, frankly. For evidence, check out this comment from Sen. Carl Levin, as mentioned in the New York Times. “We make clear that whatever the law is, it is unaffected by this language in our bill,” he said.

However, one of the even more extraordinary things about the Senate’s custody provisions is not only that they are a mangled, scrambled mess, but also that no one who will be required to obey them wants anything to do with them. The executive branch, the military, the FBI and the CIA — no one asked for this new policy. As Spencer Ackerman noted for Wired:

Defense Secretary Leon Panetta opposes the maneuver. So does CIA Director David Petraeus, who usually commands deference from senators in both parties. Pretty much every security official has lined up against the Senate detention provisions, from Director of National Intelligence James Clapper to FBI Director Robert Mueller, who worry that they’ll get in the way of FBI investigations of domestic terrorists.

Also opposing the bill’s unwanted provisions are Department of Defense General Counsel Jeh Johnson, Obama Counterterrorism adviser John Brennan, 16 former interrogators and counterterrorism professionals, and 26 retired military leaders who, on Tuesday, urged Senators to support an amendment by Sen. Mark Udall, backed by Sen. Jim Webb, to strip all the troublesome provisions from the legislation (and also see Sen, Udall’s eminently sensible Washington Post op-ed). Despite this, the Udall amendment was defeated by 61 votes to 37 (with 16 Democrats voting against the amendment — see the breakdown of votes here).

In addition, President Obama has threatened to veto the bill, although whether he will remains to be seen. The mandatory military custody provisions, after all, have a get-out clause, as Andrew Cohen noted for the Atlantic a month ago, when he wrote:

Section 1032, to be applied in concert with Section 1031, contains a mandatory detention requirement for anyone “determined” (by the military) to be a member of al-Qaeda or its affiliates. It allows the executive branch, however, to “waive” this requirement by having the “Secretary of Defense … in consultation with the Secretary of State and the Director of National Intelligence” submit to Congress a written certificate that the waiver is in the “national security interests of the United States.” The executive branch, in other words, would practically have to do a song-and-dance on Capitol Hill to prosecute a terror suspect in civilian court.

Obama, of course, is no great defender of due process, as he had Osama bin Laden killed in a Wild West style and also approved the execution without any kind of charge or trial of Anwar al-Awlaki, an American citizen, in Yemen, where he was producing irritating jihadist material in English on the Internet. However, it seems likely that his defense secretary, Leon Panetta, will indeed be forced to jump through hoops if the custody provisions are not removed.

I honesty find it hard to believe that these proposals even made it as far as they did, especially as Sen. Carl Levin was involved in drafting the legislation with the usual deranged suspects — Sens. John McCain, Lindsey Graham and Joe Liebermann — plus torture advocate Sen. Kelly Ayote, who attempted to specifically reintroduce torture as official US policy in her own deranged bill, which was recently defeated. Astonishingly, the Senate Armed Services Committee, where this toxic brew was created, conjured it up in secret, which did not go down well with some of the lawmakers’ colleagues. Although Senate Majority Leader Harry Reid initially found his spine and spoke up against it, he soon remembered that it is his job to cave in on matters of importance, which he duly did, although others were not so easily swayed.

Vermont Sen. Patrick Leahy, as Andrew Rosenthal explained in the New York Times, noted with horror that the provisions were “hashed out behind closed doors without consultation with his committee [he is the chairman of the Senate Judiciary Committee], or the Intelligence Committee, or the Defense Department, the FBI or the intelligence community.” In addition, as Andrew Cohen explained:

Leahy, and California’s Dianne Feinstein, chairwoman of the Senate Select Committee on Intelligence, wrote Sen. Reid a letter requesting that the controversial provisions be removed from the NDAA. “We concur with the Administration’s view that mandatory military custody is ‘undue and dangerous,’” they wrote, “and that these provisions would ‘severely and recklessly undermine’ our Nation’s counterterrorism efforts.”

The provisions relating to Guantánamo and why they are also important

However, while a host of critics are lined up against the mandatory military custody aspects of the bill, far less attention, unfortunately, has been paid to the provisions preventing the closure of Guantánamo. As Andrew Cohen lamented a month ago, “I think Section 1034 [banning the use of any funds to buy an alternative prison] may be the worst of the lot — a triumph of fear and prejudice over pragmatic solutions. But it doesn’t appear to have raised the hackles of even those senators who are opposed to some of the other provisions. Go figure.”

Go figure, indeed. It may, perhaps, be slightly cynical of me to note that the story of Guantánamo involves foreigners and that Americans only wake up in any kind of numbers when legal monstrosities might apply to American citizens, but there does appear to be some truth in it. If it could be demonstrated that no American could possibly end up in mandatory military custody as a result of the Senate’s mad provisions, I would be prepared to wager that hardly any Americans would bat an eyelid.

As it is, I can only hope that the two sections relating to Guantánamo, and two other sections specifically criticized by the President’s advisors (in which Congress demanded detainee reviews from the executive branch) are subjected to a veto. To make it clear, Section 1033 (which ramps up unjustifiable restrictions already implemented by lawmakers) is entitled, “Requirements for certifications relating to the transfer of detainees at United States Naval Station, Guantánamo Bay, Cuba, to foreign countries and other foreign entities,” and it stipulates that no transfer out of Guantánamo will be allowed “if there is a confirmed case of any individual who was detained at [Guantánamo] who was transferred to such foreign country or entity and subsequently engaged in any terrorist activity.”

As noted above, Section 1034 (which repeats previous bans imposed by lawmakers) is entitled, “Prohibition on use of funds to construct or modify facilities in the United States to house detainees transferred from United States Naval Station, Guantánamo Bay, Cuba,” prevents the closure of Guantánamo by stopping the President from buying or modifying an alternative facility elsewhere, and then there are the two other provisions, both new, and both largely unnoticed.

Section 1035, entitled, “Procedures for periodic detention review of individuals detained at United States Naval Station, Guantánamo Bay, Cuba,” requires the Secretary of Defense “to submit a report to Congress for implementing the periodic review process” established in the executive order of March this year, which, outrageously, authorized the indefinite detention without charge or trial — but with periodic reviews — of 46 of the remaining 171 prisoners, on the unacceptable basis that they were too dangerous to be released, but that there was insufficient evidence to put them on trial.

Section 1036, entitled, “Procedures for Status Determinations,” states that, “Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the appropriate committees of Congress a report setting forth the procedures for determining the status of persons detained pursuant to the Authorization for Use of Military Force (Public Law 107–40) for purposes of section 1031″ — meaning that it is supposed to establish, to the satisfaction of Congress, who will be subjected to mandatory military custody.

The response of the President’s Office, in its letter threatening a veto, spells out the administration’s opposition to these sections, and is of interest. The President’s advisors noted:

The certification and waiver, required by section 1033 before a detainee may be transferred from Guantánamo Bay to a foreign country, continue to hinder the Executive branch’s ability to exercise its military, national security, and foreign relations activities. While these provisions may be intended to be somewhat less restrictive than the analogous provisions in current law, they continue to pose unnecessary obstacles, effectively blocking transfers that would advance our national security interests, and would, in certain circumstances, violate constitutional separation of powers principles. The Executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers.

Section 1034′s ban on the use of funds to construct or modify a detention facility in the United States is an unwise intrusion on the military’s ability to transfer its detainees as operational needs dictate.

Section 1035 conflicts with the consensus-based interagency approach to detainee reviews required under Executive Order No. 13567, which establishes procedures to ensure that periodic review decisions are informed by the most comprehensive information and the considered views of all relevant agencies.

Section 1036, in addition to imposing onerous requirements, conflicts with procedures for detainee reviews in the field that have been developed based on many years of experience by military officers and the Department of Defense.

The President’s advisors concluded:

In short, the matters addressed in these provisions are already well regulated by existing procedures and have traditionally been left to the discretion of the Executive branch.

Broadly speaking, the detention provisions in this bill micromanage the work of our experienced counterterrorism professionals, including our military commanders, intelligence professionals, seasoned counterterrorism prosecutors, or other operatives in the field. These professionals have successfully led a Government-wide effort to disrupt, dismantle, and defeat al-Qaeda and its affiliates and adherents over two consecutive Administrations. The Administration believes strongly that it would be a mistake for Congress to overrule or limit the tactical flexibility of our Nation’s counterterrorism professionals.

This is not quite the end of the road for the NDAA, as it must now be consolidated with the version previously passed by the House of Representatives, which I wrote about here and here. However, it is almost certain that the President will soon be required to make clear what he thinks.

If Obama is wavering, as is his habit, I would suggest that he takes note of the fact that the election season is nearly upon us, and that, as we approach that frenzy of hype and hyperbole, he needs do something to make his progressive supporters remember why they might want to vote for him, rather than just hoping — or presuming — that they will not vote against him. In short, the President needs to veto this bill, and stand up for US justice, and the still-pressing need to close Guantánamo, rather than doing as he has so often on national security issues, and caving in to pressure.

About the author:
Andy Worthington

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to his RSS feed (he can also be found on Facebook and Twitter). Also see his definitive Guantánamo prisoner list, updated in January 2010, and, if you appreciate his work, feel free to make a donation.

Thursday, November 24, 2011

Bush, Blair Found Guilty of War Crimes

Bush, Blair Found Guilty of War Crimes

23 Nov 2011 A War Crimes Tribunal in Malaysia has found former US President [sic] George W. Bush and former British Prime Minister Tony Blair guilty of war crimes for their roles in the Iraq war, Press TV reports. The five-panel Kuala Lumpur War Crimes Tribunal decided that Bush and Blair committed genocide and crimes against humanity by leading the invasion of Iraq in 2003, a Press TV correspondent reported on Tuesday. The Malaysian tribunal judges ruled that the decision to wage war against Iraq by the two former heads of government was a flagrant abuse of law and an act of aggression that led to large-scale massacres of the Iraqi people.

Thursday, November 10, 2011

Alfermedi Cert Petition 11-10-2011


By Ritika Singh

(item 2 shifts the burden of proof from the government to the detainee. –ed.)

Contains links to the oral argument summary, April 11, government’s reply brief, the petitioner’s brief, and the government’s opening brief. 

The abstract follows below.

Almerfedi Cert Petition

by Ritika Singh

Hussain Salem Mohammed Almerfedi, a Guantanamo habeas petitioner, has filed a cert petition that presents the following questions:

1. Whether the Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001) (“AUMF’), orBoumediene v. Bush, 553 U.S. 723 (2008), permits detention on the basis of three facts that are themselves not incriminating.

2. Whether the AUMF or Boumediene authorizes a standard of proof under which, if the government puts forward somecredible evidence justifying the detainee’s detention, the detainee, to prevail, must rebut government’s evidence.

3. Whether the Court of Appeals’ manifest unwillingness to allow Guantanamo detainees to prevail in their habeas corpus cases calls for the exercise of this Court’s supervisory power.

For our readers who’d like to get a complete overview of the case, here are Ben’s thoughts on the D.C. Circuit opinion from June 10, the oral argument summary from April 11, the government’s reply brief, the petitioner’s brief, and the government’s opening brief.

D. Lagutaris, ed.

Wednesday, November 9, 2011

Guantánamo: the most expensive prison on earth (ever)

The cost to house a captive at Guantánamo Bay is $800,000 per year, far in excess of other federal or state lockups.
Miami Herald; Tuesday, November 8, 2011
by Carol Rosenberg
Read more:
Olivia LaRosa, relayer/reframer
Also at Hypatia of California, Olivia’s and Deb’s Blog
GUANTANAMO BAY NAVY BASE, Cuba -- Guards get combat pay, just like troops in Afghanistan, without the risk of being blown up. Some commanders get to bring their families to this war-on-terror deployment. And each captive gets $38.45 worth of food a day.
The Pentagon detention center that started out in January 2002 as a collection of crude open-air cells guarded by Marines in a muddy tent city is today arguably the most expensive prison on earth, costing taxpayers $800,000 annually for each of the 171 captives by Obama administration reckoning.
That’s more than 30 times the cost of keeping a captive on U.S. soil.
It’s still funded as an open-ended battlefield necessity, although the last prisoner arrived in March 2008. But it functions more like a gated community in an American suburb than a forward-operating base in one of Afghanistan’s violent provinces.
Congress, charged now with cutting $1.5 trillion from the budget by Christmas, provided $139 million to operate the center last year, and has made every effort to keep it open — even as a former deputy commander of the detention center calls it “expensive” and “inefficient.”
“It’s a slow-motion Berlin Airlift — that’s been going on for 10 years,” says retired Army Brig. Gen. Greg Zanetti, a West Point graduate who in 2008 was deputy commander at the detention center.
Both its location and temporary nature drive up costs, says Zanetti. While there, he wrote a secret study that compared the operation to Alcatraz, noting that Attorney General Robert F. Kennedy had closed it in 1963 because it was too expensive.
At Guantánamo, everything comes in by barge or aircraft “from paper clips to bulldozers,” Zanetti says, as well as the revolving guard force. Also, more recently, a massage chair for stressed-out prison camp staff.
Zanetti, now a Seattle-based money manager, was a financial advisor in civilian life before his New Mexico National Guard unit’s call-up to Guantánamo. He has never disputed that America needed the detention center after 9/11 but argues that today it deserves a cost-benefit analysis.
“What complicates the overall command further is you have the lawyers, interrogators and guards all operating under separate budgets and command structures,” he said. “It’s like combining the corporate cultures and budgets of Goldman, Apple and Coke. Business schools would have a field day dissecting the structure of Guantánamo.”
An examination of the expenses shows that now, with no strategy for meeting President Barack Obama’s Jan. 22, 2009 closure order, the military is preparing for the prison’s next decade. Spending is not just aimed at upgrades for the captive population, most in medium security confinement, but also for the revolving staff of 1,850 troops, linguists, intelligence analysts, federal agents and contract laborers.
Commanders are contracting for a new round of capitol improvements, including $2 million worth of new computer equipment to grow storage space under a fast-track, noncompetitive contract with Dell recently posted on a government website. And that doesn’t include the un-networked laptops the prison provides captives taking a life skills class that includes a resume writing lesson, in case anyone gets to go home.
Meantime, the guard force commander is getting a new 3,000-3,500 square foot headquarters at the prison camps for what is predicted to cost less than $750,000, below the amount that needs Congress’ sign-off.
End of Page One of Five-continue to Page Two at the Miami Herald site.
Another method of access: