Category Archives: law

A trial for Saddam and a bomb for bin Laden

Attorney General Eric Holder told Congress on Tuesday that Osama bin Laden will never face trial in the United States because he will not be captured alive.

In testy exchanges with House Republicans, the attorney general compared terrorists to mass murderer Charles Manson and predicted that events would ensure “we will be reading Miranda rights to the corpse of Osama bin Laden” not to the al-Qaida leader as a captive.

Holder sternly rejected criticism from GOP members of a House Appropriations subcommittee, who contend it is too dangerous to put terror suspects on trial in federal civilian courts as Holder has proposed.

Unless my memory fails me, there was no outrage expressed in Congress when Saddam Hussein was captured, rather than given a summary execution. Nor were there howls of protest when he was imprisoned without torture and treated humanely. Nor were there huge objections against him going through a criminal trial. This for a man widely understood to have been responsible for the deaths of tens of thousands of Iraqis.

And let’s not forget, throughout the time Saddam was being hunted down he was presented as a greater threat to the world than Osama bin Laden.

Do American lawmakers have such little faith in the law they make or in the judicial system that applies that law, that they regard the United States legal system as too feeble an entity to justly handle the fate of one man — even a man given mythical proportions of Osama bin Laden?

As John Brennan — Assistant to the President and Deputy National Security Advisor for Homeland Security and Counterterrorism — pointed out last month, “Terrorists are not 100-feet tall. Nor do they deserve the abject fear they seek to instill.”

Incompetent McCarthyism and shared beliefs

Scott Horton takes on the neocon campaign against a group of lawyers, now working for the Obama Administration, who “voluntarily represented terrorists.”

…the incompetent McCarthyites haven’t done their homework. On a list of lawyers in recent government service who have served alleged terrorists, the first name might be Michael Chertoff’s. Chertoff served as counsel to Magdy El-Amir, a man identified as a leading Al Qaeda fundraiser in North America. Chertoff went on to head the criminal division at Justice and then to become secretary of Homeland Security. There is no hint that his ties to El-Amir in any way influenced Chertoff in his duties in the Bush Administration, nor would any reasonable person suspect that they would. The list would also include Michael Mukasey, Bush’s last attorney general, whose law firm had an active pro bono program writing appeals briefs in support of the Guantánamo inmates on constitutional issues, and Rudy Giuliani, whose firm was and is also engaged in representing Gitmo prisoners. It therefore came as no surprise when leading Republican lawyers quickly came out attacking the Cheney-Kristol-Goldfarb project as “shameful.”

But the question that Liz Cheney asks is an appropriate one. “Whose values do they share?” Perhaps it’s the values of John Adams. After the Boston Massacre, when revolutionary sentiment was flaring, Adams stood up to represent the British soldiers accused of slaughtering his fellow Bostonians in a criminal trial, and he helped them beat the rap. Most of his fellow citizens were dumbstruck by his decision, but at the end of a long life, looking back, Adams decided that this was “one of the best Pieces of Service I ever rendered my Country.” It’s the values of Kenneth Royall, the JAG colonel who defended a group of accused German saboteurs during World War II, bringing their appeal to the Supreme Court against the wishes of his commander-in-chief. Royall’s brilliant defense got him a promotion to brigadier general, and it later helped drive President Truman’s decision to name him the last American secretary of war. Vigorous defense of even the meanest person accused is an essential part of our democracy and our notions of justice—but it’s not a value that is shared by Liz Cheney.

Whose values does Liz Cheney share? Look at the nations around the world in which criminal defense counsel are harassed and persecuted. Look at Putin’s Russia and the case of Sergei Magnitsky, or Mugabe’s Zimbabwe and the case of Beatrice Mtetwa. Perhaps it is in countries like Russia and Zimbabwe that Liz Cheney and her Weekly Standard friends might find governments that share their values.

Meanwhile, the ACLU ran an ad in the New York Times on Sunday, calling on President Obama not to reverse his administration’s decision to prosecute the 9/11 suspects in civilian courts.

Obama advisers set to recommend military tribunals for alleged 9/11 plotters

The Washington Post reports:

President Obama’s advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal, administration officials said, a step that would reverse Attorney General Eric H. Holder Jr.’s plan to try him in civilian court in New York City.

The president’s advisers feel increasingly hemmed in by bipartisan opposition to a federal trial in New York and demands, mainly from Republicans, that Mohammed and his accused co-conspirators remain under military jurisdiction, officials said. While Obama has favored trying some terrorism suspects in civilian courts as a symbol of U.S. commitment to the rule of law, critics have said military tribunals are the appropriate venue for those accused of attacking the United States.

Scott Horton comments:

In sharp violation of rules of prosecutorial conduct and ethics, political figures in the White House are engaged in the micromanagement of decisions concerning the prosecution of individual criminal defendants. Rahm Emanuel is a political figure, without any serious legal expertise or abilities. He openly presented the question as a matter of political opportunity—thereby infecting the criminal justice system with political horse-trading. This is more than just unseemly. It presents a direct affront to the integrity of the criminal justice system. After eight years in which Karl Rove manipulated essential prosecutorial decisions at Justice, now his successor is engaged in the same type of misconduct. But unlike Rove, Emanuel does it openly.

Genuine American exceptionalism on due process

Glenn Greenwald on America’s disregard for due process:

If there’s any country which can legitimately claim that Islamic radicalism poses an existential threat to its system of government, it’s Pakistan. Yet what happens when they want to imprison foreign Terrorism suspects? They indict them and charge them with crimes, put them in their real court system, guarantee them access to lawyers, and can punish them only upon a finding of guilt. Pakistan is hardly the Beacon of Western Justice — its intelligence service has a long, clear and brutal record of torturing detainees (and these particular suspects claim they were jointly tortured by Pakistani agents and American FBI agents, which both governments deny). But just as is true for virtually every Western nation other than the U.S., Pakistan charges and tries Terrorism suspects in its real court system.

The U.S. — first under the Bush administration and now, increasingly, under Obama — is more and more alone in its cowardly insistence that special, new tribunals must be invented, or denied entirely, for those whom it wishes to imprison as Terrorists (along those same lines, my favorite story of the last year continues to be that the U.S. compiled a “hit list” of Afghan citizens it suspected of drug smuggling and thus wanted to assassinate [just as we do for our own citizens suspected of Terrorism], only for Afghan officials — whom we’re there to generously teach about Democracy — to object on the grounds that the policy would violate their conceptions of due process and the rule of law). Most remarkably, none of this will even slightly deter our self-loving political and media elites from continuing to demand that the Obama administration act as self-anointed International Arbiter of Justice and lecture the rest of the world about their violations of human rights.

Can speech constitute terrorism?

Shayana Kadidal, a senior managing attorney at the Center for Constitutional Rights, lays out the issues in fron of the Supreme Court today in a case that asks whether political speech – writing an op-ed for, or teaching nonviolent conflict resolution to a group on the government’s blacklists – can constitute a crime of terrorism carrying a fifteen year prison sentence.

The law at issue is the “material support” statute. Created in 1996 and modified several times by Congress (including in the Patriot Act) after parts of it were struck down by earlier rounds of this lawsuit, the statute allows the State Department to create a blacklist of “foreign terrorist organizations” – defined very broadly to include groups that engage in violence against property that hurts U.S. economic interests. Once a group is on the blacklist, virtually any form of association with the group becomes a crime.

Once obscure, the law is becoming more familiar as it is invoked in almost every terrorism prosecution brought since 9/11. People hear the term “material support” and, because the word “material” connotes “tangible,” assume it must mean things akin to weapons or money. But in fact the statute specifically says that various intangibles – “training,” “expert advice or assistance,” “personnel” or “services” – all are included within the ban.

Our plaintiffs are a variety of U.S.-based humanitarian activists. Humanitarian Law Project and its founder Ralph Fertig seek to work with members of one of the blacklisted groups, the Kurdistan Workers Party (PKK), teaching them how to monitor human rights abuses against the Kurds, bring human rights complaints to the UN, and encourage the PKK – which like many separatist groups has engaged in both peaceful advocacy and violence – to solve their disputes through nonviolent conflict resolution. The other plaintiffs are Tamil-American groups that sought to send humanitarian aid – money, relief supplies, and their own members (doctors, lawyers and engineers) – to do medical relief and help rebuild the parts of Sri Lanka devastated by the civil war between the government and a rebel group on the list, the Tamil Tigers (LTTE). Because the LTTE served as the functioning government in the area prior to 2009, any aid workers there would have to have dealt with the group in the course of carrying out their humanitarian missions. After the December 26, 2004 Indian Ocean Tsunami, those same LTTE controlled-parts of Sri Lanka already devastated by the civil war were further ravaged. Yet the prohibitions prevented Tamil-Americans from traveling there to help deal with one of the ten greatest natural disasters in recorded history.

Manhattan transfer

Manhattan transfer
By Dahlia Lithwick, Slate, November 16, 2009

Opposition to the Obama administration’s plan to try alleged 9/11 mastermind Khalid Sheikh Mohammed and his confederates in a federal court in New York City is hardening into two camps. One is concerned that we may be unwittingly playing into the terrorists’ hands. The other is incensed that we already have. What both camps share, besides a kind of unhinged logic and complete disregard for the legal process, is an obsessive fascination with the accused. The result is a broad willingness to sacrifice our commitment to legal principles in favor of the symbolic satisfaction of crushing the hopes and dreams of a motley group of criminals.

Former New York Mayor Rudy Giuliani, firmly in the first camp, is hopping mad that we are poised to make all the suspect’s dreams come true. As he said on ABC’s This Week: “Khalid Sheikh Mohammed, when he was first arrested, asked to be brought to New York. I didn’t think we were in the business of granting the requests of terrorists.”

Funny, that. I didn’t think we were in the business of caring one way or another what the terrorists want from us. The criminal justice system is as uninterested in advancing the goals of the accused as it is in frustrating them. The most vocal critics seem to forget that our legal system exists not to grant requests or dash hopes but to bring people to justice. [continued…]

Detainees to get the “state-always-wins” system of “justice”

Detainees to get the “state-always-wins” system of “justice”
By Glenn Greenwald, Salon, November 13, 2009

… what we have here is not an announcement that all terrorism suspects are entitled to real trials in a real American court. Instead, what we have is a multi-tiered justice system, where only certain individuals are entitled to real trials: namely, those whom the Government is convinced ahead of time it can convict. Others for whom conviction is less certain will be accorded lesser due process: put in military commissions, to which most leading Democrats vehemently objected when created under Bush. Presumably, others still — those who the Government believes cannot be convicted in either forum, will simply be held indefinitely with no charges, a power the administration recently announced it intends to preserve based on the same theories used by Bush/Cheney to claim that power.

A system of justice which accords you varying levels of due process based on the certainty that you’ll get just enough to be convicted isn’t a justice system at all. It’s a rigged game of show trials. This is a point I’ve been emphasizing since May, when Obama gave his speech in front of the Constitution at the National Archives and explained how there were five different “categories” of terrorism suspects who would be treated differently based on the category into which they fell: [continued…]

US blocks ‘Syria torture’ lawsuit

US blocks ‘Syria torture’ lawsuit
Al Jazeera, November 3, 2009

A US federal appeals court has ruled that a Canadian man cannot sue the US after he was held at a New York airport and then transferred to Syria, where he alleges he was tortured.

Maher Arar, a Syrian-born software engineer, was detained by US authorities during a stopover in New York while heading home to Canada in 2002, and then sent to Syria because he was suspected of having links to al-Qaeda.

Arar says he was held in a Syrian jail for almost a year and that he was beaten and whipped with electrical cables during his detention.

In a 7-4 vote on Monday, the US court of appeals for the Second Circuit agreed with a lower court that Arar could not sue US officials, saying that he did not have legal standing. [continued…]

U.S. citizens wrongly detained, deported by ICE

U.S. citizens wrongly detained, deported by ICE
By Tyche Hendricks, San Francisco Chronicle, July 27, 2009

The son of a decorated Vietnam veteran, Hector Veloz is a U.S. citizen, but in 2007 immigration officials mistook him for an illegal immigrant and locked him in an Arizona prison for 13 months.

Veloz had to prove his citizenship from behind bars. An aunt helped him track down his father’s birth certificate and his own, his parents’ marriage certificate, his father’s school, military and Social Security records.

After nine months, a judge determined that he was a citizen, but immigration authorities appealed the decision. He was detained for five more months before he found legal help and a judge ordered his case dropped.

“It was a nightmare,” said Veloz, 37, a Los Angeles air conditioning installer.

Veloz is one of hundreds of U.S. citizens who have landed in the custody of U.S. Immigration and Customs Enforcement and struggled to prove they don’t belong there, according to advocacy groups and legal scholars, who have tracked such cases around the country. Some citizens have been deported. [continued…]

FEATURE: Why Bush should reflect on Pinochet

The green light
By Philippe Sands, Vanity Fair, May, 2008

The abuse, rising to the level of torture, of those captured and detained in the war on terror is a defining feature of the presidency of George W. Bush. Its military beginnings, however, lie not in Abu Ghraib, as is commonly thought, or in the “rendition” of prisoners to other countries for questioning, but in the treatment of the very first prisoners at Guantanamo. Starting in late 2002 a detainee bearing the number 063 was tortured over a period of more than seven weeks. In his story lies the answer to a crucial question: How was the decision made to let the U.S. military start using coercive interrogations at Guantanamo?

The Bush administration has always taken refuge behind a “trickle up” explanation: that is, the decision was generated by military commanders and interrogators on the ground. This explanation is false. The origins lie in actions taken at the very highest levels of the administration—by some of the most senior personal advisers to the president, the vice president, and the secretary of defense. At the heart of the matter stand several political appointees—lawyers—who, it can be argued, broke their ethical codes of conduct and took themselves into a zone of international criminality, where formal investigation is now a very real option. This is the story of how the torture at Guantanamo began, and how it spread. [complete article]

NEWS & OPINION: Signing statements

The fine print
Editorial, New York Times, January 30, 2008

With President Bush, you always have to read the footnotes.

Just before Monday night’s State of the Union speech, in which Mr. Bush extolled bipartisanship, railed against government excesses and promised to bring the troops home as soon as it’s safe to withdraw, the White House undermined all of those sentiments with the latest of the president’s infamous signing statements.

The signing statements are documents that earlier presidents generally used to trumpet their pleasure at signing a law, or to explain how it would be enforced. More than any of his predecessors, the current chief executive has used the pronouncements in a passive-aggressive way to undermine the power of Congress.

Over the last seven years, Mr. Bush has issued hundreds of these insidious documents declaring that he had no intention of obeying a law that he had just signed. This is not just constitutional theory. Remember the detainee treatment act, which Mr. Bush signed and then proceeded to ignore, as he told C.I.A. interrogators that they could go on mistreating detainees? [complete article]

Bush issues signing statement on defense act, waiving ban on permanent bases In Iraq
Think Progress, January 29, 2008

P President Bush yesterday signed the 2008 National Defense Authorization Act after initially rejecting Congress’s first version because it would have allegedly opened the Iraqi government to “expensive lawsuits.”

Even though he forced Congress to change its original bill, Bush’s signature yesterday came with a little-noticed signing statement, claiming that provisions in the law “could inhibit the President’s ability to carry out his constitutional obligations.” CQ reports on the provisions Bush plans to disregard:

One such provision sets up a commission to probe contracting fraud in Iraq and Afghanistan. Another expands protections for whistleblowers who work for government contractors. A third requires that U.S. intelligence agencies promptly respond to congressional requests for documents. And a fourth bars funding for permanent bases in Iraq and for any action that exercises U.S. control over Iraq’s oil money. [complete article]

EDITORIAL: Judicial complicity in torture

U.S. Court of Appeals decides that at Guantanamo, torture’s part of the job, but not to worry, the victims aren’t people
By Paul Woodward, War in Context, January 13, 2008

Suppose a United States Court of Appeals decided that even if torture is illegal, torturers cannot be prosecuted because “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants.” And suppose the same court when approached by plaintiffs who have alleged that “high-level U.S. government officials treated them as less than human,” told those plaintiffs that the court itself did not regard them as “persons.” Would such a legal ruling merit great attention in the Washington Post or the New York Times? Apparently not.

What the U.S. Court of Appeals for the District of Columbia Circuit decided last Friday, was that, as James Oliphant reported in the Baltimore Sun, “even if torture and religious abuse were illegal, defendants were immune under the Constitution because they could not have reasonably known that detainees at Guantanamo had any constitutional rights.”

As Eric Lewis, a lawyer for the detainees said, “It is an awful day for the rule of law and common decency when a court finds that torture is all in a days’ work for the secretary of defense and senior generals.” It is also an awful day when the leading newspapers in America regard this event as worthy of nothing more than a cursory mention.

What the federal court of appeals has in effect done is to undergird a culture of torture. They have concocted a legal defense for individuals who might want to shield themselves behind a line of defense that failed the Nazis: we were just following orders. And they have constructed a legalistic artifice that dovetails into the mindset that facilitates torture: the de-humanization of the victims.

NEWS: Refusing to condone torture

Navy JAG resigns over torture issue
McClatchy, December 27, 2007

“It was with sadness that I signed my name this grey morning to a letter resigning my commission in the U.S. Navy,” wrote Gig Harbor, Wash., resident and attorney-at-law Andrew Williams in a letter to The Peninsula Gateway last week. “There was a time when I served with pride … Sadly, no more.”

Williams’ sadness stems from the recent CIA videotape scandal in which tapes showing secret interrogations of two Al Qaeda operatives were destroyed.

The tapes may have contained evidence that the U.S. government used a type of torture known as waterboarding to obtain information from suspected terrorists.

Torture, including water-boarding, is prohibited under the treaties of the Geneva Convention.

It was in the much-publicized interview two weeks ago between Sen. Lindsey Graham (R-South Carolina) and Brig. Gen. Thomas Hartmann, who is the chief legal adviser at the Pentagon’s Office of Military Commissions, that led Williams to resign. [complete article]

NEWS: Administration tries to control JAGs

Control sought on military lawyers
By Charlie Savage, Boston Globe, December 15, 2007

The Bush administration is pushing to take control of the promotions of military lawyers, escalating a conflict over the independence of uniformed attorneys who have repeatedly raised objections to the White House’s policies toward prisoners in the war on terrorism.

The administration has proposed a regulation requiring “coordination” with politically appointed Pentagon lawyers before any member of the Judge Advocate General corps – the military’s 4,000-member uniformed legal force – can be promoted.

A Pentagon spokeswoman did not respond to questions about the reasoning behind the proposed regulations. But the requirement of coordination – which many former JAGs say would give the administration veto power over any JAG promotion or appointment – is consistent with past administration efforts to impose greater control over the military lawyers. [complete article]

NEWS & ANALYSIS: Destroying evidence of war crimes

CIA destroyed 2 tapes showing interrogations
By Mark Mazzetti, New York Times, December 7, 2007

The Central Intelligence Agency in 2005 destroyed at least two videotapes documenting the interrogation of two Qaeda operatives in the agency’s custody, a step it took in the midst of Congressional and legal scrutiny about its secret detention program, according to current and former government officials.

The videotapes showed agency operatives in 2002 subjecting terrorism suspects — including Abu Zubaydah, the first detainee in C.I.A. custody — to severe interrogation techniques. The tapes were destroyed in part because officers were concerned that video showing harsh interrogation methods could expose agency officials to legal risks, several officials said. [complete article]

Obstruction of justice at the CIA
By Scott Horton, Harper’s, December 6, 2007

Let’s first focus on this question: Why is this evidence being destroyed? The answer is painfully acknowledged. The CIA leadership and other senior administration officials are fully cognizant of the fact that the use of a number of specific practices which these tapes almost certainly document, to-wit: waterboarding, long-time standing, hypothermia, psychotropic drugs and sleep deprivation in excess of two days, are serious crimes under American law and the law of almost all nations. Consequently, those who have used them and those who have authorized their use will almost certainly ultimately face criminal prosecution at some point in the future. The Administration’s attempts to immunize the perpetrators have failed. Any purported grant of a pardon by President Bush will be legally ineffective, because Bush himself is a collaborator in the scheme. And there is no statute of limitations. Therefore the prospect of prosecution is hardly far-fetched. It is a virtual certainty. So the evidence is being destroyed precisely because it would be used as evidence of criminal acts in a prosecution of administration figures and those acting under their direction. Therefore, this is a conscious, calculated obstruction of justice. [complete article]

See also, CIA destroyed videos showing interrogations (WP), Marty Lederman – includes Hayden’s message to CIA employees (Balkinization), and This is a banana republic (Andrew Sullivan).

NEWS: Federal judge doesn’t trust government

Moussaoui judge questions government
By Matthew Barakat, AP, November 20, 2007

A federal judge expressed frustration Tuesday that the government provided incorrect information about evidence in the prosecution of Sept. 11 conspirator Zacarias Moussaoui and raised the possibility of ordering a new trial in another high-profile terrorism case.

At a post-trial hearing Tuesday for Ali al-Timimi, a Muslim cleric from Virginia sentenced to life in prison in 2004 for soliciting treason, U.S. District Judge Leonie Brinkema said she can no longer trust the CIA and other government agencies on how they represent classified evidence in terror cases. [complete article]

NEWS, ANALYSIS & EDITOR’S COMMENT: The long and winding path to democracy

Washington envisions a Pakistan beyond Musharraf
By Howard LaFranchi, Christian Science Monitor, November 13, 2007

President Bush continues to praise Pakistan’s President Pervez Musharraf as a valued ally in the war on terror. At the same time, US officials are pressuring the military leader over his declaration of emergency law – though some Pakistanis call it pressure with kid gloves – as if he were the only acceptable game in Islamabad.

Yet even as Secretary of State Condoleezza Rice argues for patience toward General Musharraf, some US officials and South Asia experts are doing what they say the US has failed to do: envision and prepare for a post-Musharraf Pakistan.

“Washington’s approach to Pakistan has always been that the devil we know is better than the devil we don’t know. But there is every reason to believe that with Musharraf and Pakistan, that is not the case,” says Selig Harrison, director of the Asia Program at the Center for International Policy in Washington. “Musharraf has blinded Washington over and over again with a mastery of blackmail, but in the two areas we worry most about – nuclear proliferation and Islamist extremism – there are alternatives that are just as good, if not better.” [complete article]

Musharraf’s survival may hinge on elections
By Robin Wright, Washington Post, November 12, 2007

The Bush administration is betting that President Pervez Musharraf can survive the crisis in Pakistan if he moves decisively to lift emergency rule and hold elections over the next two months, despite new U.S. intelligence concerns about the dangers of long-term instability or, worse, a political vacuum, U.S. officials say. Timing is the key, they add.

Secretary of State Condoleezza Rice yesterday called on Musharraf to restore constitutional rule “as soon as possible.” The administration is considering sending a senior official to Islamabad this week to tell the Pakistani leader that he must urgently rescind restrictions on the media, civil society and opposition politicians, which could discredit any January elections — and endanger both Pakistan’s stability and his political future, the sources said. [complete article]

Editor’s Comment — Funny how an administration that is “dedicated to helping the Pakistani people come to a more democratic path” places all its attention on the theater of (riggable) elections yet says nothing about reinstituting the judiciary. The path to democracy is clearly much more appealing than the destination.

And how representative of Washington thinking is this? One former State official envisages one post-Musharraf scenario this way:

A less favorable alternative for the US, Markey, says, would be the rise of the Pakistan Muslim League (N), led by exiled former Prime Minister Nawaz Sharif.

“That wouldn’t mean an extremist Pakistan, but they just aren’t as keen on working that closely with the US, and they don’t see the world through Washington’s lenses,” says Markey.

Neocolonialism is alive and well. Can you imagine anyone in Pakistan saying, “We fear the next US president might be one who doesn’t see the world through Islamabad’s lenses”?

NEWS: Pakistan’s legal revolution

Lawyers: Pakistan political conscience
By Matthew Pennington, AP, November 8, 2007

Thousands of black-suited lawyers facing police batons and tear gas to protest the declaration of emergency rule have become Pakistan’s political conscience.

Enraged by President Pervez Musharraf’s assault on independent judges, the legal community has eclipsed discredited opposition parties as the torchbearers for democracy.

The general’s botched attempt to oust Pakistan’s top judge this spring sparked a mass movement against military rule, with lawyers in the vanguard. That put wind in the sails of a defiant Supreme Court, which challenged Musharraf’s dominance and the secret workings of Pakistan’s spy agencies.

Fearing the court would declare his recent presidential election victory illegal, Musharraf finally pulled the plug on its activism on Saturday by suspending the constitution and purging its ranks. Deposed Chief Justice Iftikhar Mohammed Chaudhry, now under house arrest, has urged lawyers to revolt. [complete article]