(Originally posted on Daily Kos.)
Yesterday marked the final military commission hearing before the eve of President-elect Barack Obama’s inauguration. The question of what will become of Guantánamo was a subject of much speculation in the days before yesterday’s pre-trial hearing in the case of Saudi national Ahmed Mohammed al Darbi. Al Darbi has been held in U.S. custody for six years and is charged with conspiracy and providing material support for terrorism based on alleged connections to al-Qaeda.
Just before concluding yesterday’s hearing, the judge, Army Col. James L. Pohl, raised the issue on everyone’s mind, unaddressed in other post-election hearings. With al Darbi’s trial slated to start in late March, he said, “The court is aware that on January 20 there will be a new commander-in-chief, which may or may not impact on these proceedings.” He cautioned, “Both sides should know that unless and until a competent authority tells us not to, prepare to proceed as scheduled.”
At this, al Darbi motioned that he wished to address the court. Through an interpreter, Al Darbi spoke:
“Your honor, you had mentioned there will be a new president on January 20. I hope this location will be closed as he promised,” he announced. He continued, “I am hopeful that Mr. President Obama will make good on his promise and earn back the legitimacy the United States has lost in the eyes of the world, as a world leader.”
“I am asking this nation that claims to be a world power to respect their Constitution so that they can regain their leadership,” al Darbi added.
As he spoke, al Darbi held up a photograph of Barack Obama. When I looked more closely, I realized that he was holding a copy of the ACLU’s full-page New York Times ad that ran on November 10. The ad consists of a photograph of President-elect Barack Obama and a quotation from his campaign pledge that, “As president, I will close Guantánamo, reject the Military Commissions Act, and adhere to the Geneva Conventions.” It launched an ACLU campaign calling on President-elect Barack Obama to close the Guantánamo Bay prison and end the military commissions on Day One of his presidency. The judge admitted al Darbi’s copy of the ACLU ad into evidence.
Al Darbi’s defense lawyers later said they had no idea how al Darbi obtained the ACLU ad (and the ACLU certainly didn’t give it to him), though the detainees do have some access to news. Al Darbi articulated a now common refrain. For much of the world, Guantánamo has become a symbol of injustice, abuse, and the Bush administration’s excesses in the name of the “war on terror.” It has damaged America’s image and standing in the world. During the campaign, Obama described Guantánamo as “a sad chapter in American history.” Though it may require political capital and hard decisions, President-elect Obama must close Guantánamo immediately upon taking office. By doing so, he can end the poisonous legacy of the Bush administration’s policies and take a critical first step in restoring American values of justice, due process, and human rights.
(Also posted on Daily Kos.)
Friday brought another pre-trial hearing in the military commission case against Canadian Omar Khadr, the last Western national still being held at Guantánamo Bay. Now 22, Khadr was 15 when he was captured by U.S. forces in Afghanistan for allegedly throwing a grenade that killed a U.S. medic, Sgt. Christopher Speer. While the media coverage of Friday’s hearing focused on potential witness testimony that Khadr could not have thrown the grenade, there has been little coverage of a legal debate that threw into question the authority of the military commission here to try Khadr for Sgt. Speer’s murder.
Omar Khadr’s defense team argued Friday that the most serious crime Khadr is charged with—murder of Sgt. Speer—is not a war crime. The defense argued that Khadr cannot be tried for “murder in violation of the rules of war” in a military commission because he is accused of a homicide, not a war crime.
The laws of war are clear: Murder can be a war crime only if the victim belongs to a category of protected people during a battle, such as civilians or wounded soldiers, or if the perpetrator uses a prohibited method of warfare, such as feigning surrender or using a human shield. Khadr is charged with killing a soldier who was engaged in a firefight—not a protected person under the laws of war—and the prosecution never has claimed that he used a prohibited method of battle.
The prosecutors predictably tried to argue Friday that the usual rules don’t apply here. The prosecution based its argument almost entirely on legal texts that pre-date the Geneva Conventions (the core treaties that lay out the laws of war), displaying a breathtaking and deliberate ignorance of those laws. The prosecution’s redefinition of war crimes requires a break from the laws applied in all other post-Nuremberg war crimes tribunals.
Friday’s hearing revealed that this case should never have been brought before a military commission in the first place. The government could have properly charged Khadr in a U.S. federal court, but instead the current administration intentionally bypassed the U.S. legal system to create commissions outside the bounds of law. Now the chickens are coming home to roost: the government faces the possibility that the murder charges against Khadr will have to be thrown out as a result.
While the debate at Friday’s hearing was legalistic and technical, it is profoundly relevant to the current debate about what to do with Guantánamo’s detainees. In recent weeks, even as president-elect Obama has repeated his promise to close Guantánamo, some have used fear-mongering to argue we should open a new Gitmo at home by creating national security courts.
That the most serious charges against Omar Khadr may not even be tried by a war crimes court illustrates why it would be disastrous to import Guantánamo’s military commissions to U.S. shores. It also makes clear that it is time to transfer detainees accused of wrongdoing to U.S. criminal courts to face the American criminal justice system, rather than to perpetuate the Bush administration’s failed military commissions experiment.
President-elect Barack Obama will have to act quickly. Khadr’s trial is scheduled to start on January 26, six days after Obama takes office. And in what defense lawyer Lt.-Cmdr. Bill Kuebler labeled “a last-ditch effort to salvage this broken process,” a final pre-trial hearing has been squeezed in the day before Obama’s inauguration. On day one in office, Obama must shutter the military commissions, not tinker with the Bush administration’s broken system.
Update In an earlier version of this post, the fifth paragraph stated that the government could have properly charged Khadr in a U.S. federal court. This paragraph has been amended to clarify the fact that Friday’s hearing revealed that this case should never have been brought before a military commission in the first place.
Several press reports this week quoted people who lost loved ones on 9/11 and who were selected by the Pentagon to travel to Gitmo and attend legal proceedings for detainees accused of planning the terrorist attacks. The articles included statements attributed to those family members that the tribunals provided a fair hearing for these prosecutions and that family members “were struck by the extensive rights accorded the accused men.”
No one can imagine what it’s been like for these families and how it felt for them to sit through these proceedings. But the truth is that there are many other 9/11 families with many different viewpoints who weren’t afforded the opportunity to be there, and whose opinions weren’t represented in the initial press coverage. Many of them strongly believe that the prison and the military commissions are a miscarriage of justice that have been politically motivated from the start.
We at the ACLU have been so fortunate to meet and hear from so many incredibly courageous and strong people, who tell us that they believe no closure or real justice can come from a commissions system that allows secret evidence and evidence obtained through torture. Many of them tell us that the military commissions go against the values of the ones they lost.
In order to make their voices heard, more than 30 relatives of 9/11 victims signed on to a statement making it known that that they “do not believe these military commissions to be fair, in accordance with American values, or capable of achieving the justice that 9/11 family members and all Americans deserve.”
In addition, the ACLU teamed up with Robert Greenwald’s Brave New Films to produce this short video. It features four family members talking about why they believe Gitmo and the commissions should be shut down. These are people who have a tremendous amount at stake in seeing that justice is served in the prosecution of 9/11 suspects. What they have to say is truly powerful.
To learn more about the campaign to close Guantánamo and end the military commissions, go to www.closegitmo.com.
The footage might be shaky, but the experience is equally raw. See ACLU Executive Director Anthony Romero as he films himself in Guantanamo Bay, Cuba. Anthony was at Gitmo for the military commission hearings of five detainees charged with 9/11-related crimes. The video has footage of “Camp Justice,” the multi-million dollar tent city built to house military commission observers, and the local grocery store.
The ACLU is representing some of the defendants as part of its John Adams Project. Anthony reflects on what he observed at the hearings, and talks about where the commissions are headed. Stay tuned for more updates from the front line.
I just stepped off an airplane from Gitmo last night and thought it would be a good time to offer an insider’s take on what really happened down there this week. Unlike the many stories that have been in the press, what follows is a view from the defense table that provides a fuller perspective on the proceedings than what’s been reported.
As you might know, the ACLU has, along with the National Association of Criminal Defense Lawyers (NACDL), created the John Adams Project, through which we have sponsored expert civilian counsel to team up with the military defense lawyers representing the 9/11 defendants. It’s part of our ongoing struggle to bring a modicum of fairness to these sham prosecutions and to get Guantánamo shut down for once and for all.
As I write this today our struggle to shut Gitmo and shutter the military commissions is far from over and is anything but a fait accompli.
You probably read in the papers that on Monday, all five defendants expressed an interest in entering guilty pleas in the 9/11 case.This wasn’t unexpected news to anyone, as they essentially expressed that viewpoint from the very first hearing in June of this year.
What did change was that the defendants have been meeting as a group since the last hearing. They have recently asked to have all pending law and evidentiary motions withdrawn and that they be allowed to proceed to enter guilty pleas and be sentenced to death. All five men submitted a handwritten motion to the military judge on November 4, 2008 (Election Day) stating that this is how they would like to proceed.
Read more…
As yesterday’s proceedings at Guantánamo make headlines once again, reminding the world of the chaos-ridden military tribunals, Jameel Jaffer, director of the ACLU’s National Security Project, and project attorney Ben Wizner offer commentary on the question of what to do if and when the prison at Gitmo is finally closed.
“Don’t replace the old Guantánamo with a new one” appears on Salon.com today and discusses the emerging narrative in Washington think-tank circles that Congress should enact a law that would authorize the president to imprison alleged terrorists without charge or trial in the U.S. — essentially opening a new Gitmo here at home.
Among their arguments, they point out that “[w]hat underlies the consensus is the theory that our criminal justice system is unequal to the task of detaining terrorists in a dangerous world,” and argue that U.S. has captured and successfully prosecute terrorism suspects in the past — before and after 9/11. In other words, federal laws and procedures already exist to deal with sensitive national security information — there is no need to create an entire new legal system.
In closing, they state:
How an Obama administration chooses to tackle these issues will determine, in large part, the legal legacy of the last eight years. Even the clearest renunciation of torture will be an empty gesture if we simultaneously construct a new detention regime meant to permit prosecutors to rely on torture’s fruits. That our justice system prohibits the imprisonment of human beings on the basis of evidence that was beaten, burned, frozen or drowned out of them is evidence of its strength, not its weakness. It is why we call it a ‘justice system’ in the first place.”
Read the full article here.
Today, in partnership with Brave New Foundation, we released a new video for our Close Gitmo campaign. This video features interviews with three military commission defense lawyers and a former military commission prosecutor talking about the military commissions system that was set up to prosecute detainees in U.S. custody. They use words like “disgrace,” “sham,” “kangaroo court,” and “deeply unethical” to describe the system. See for yourself:
Today, ACLU Executive Director Anthony D. Romero is at Guantánamo to observe the pre-trial hearings of the detainees charged with crimes related to the 9/11 attacks. Today we learned the group of four detainees offered to plead guilty to the crimes.
President-elect Obama has said that he will close Guantánamo. Let’s hope he puts this shameful chapter of American justice to an end on Day One.
This week marks the 60th anniversary of the Universal Declaration of Human Rights (UDHR). The UDHR, which serves as the founding document of the modern human rights system outlines the basic rights and protections that are to be enjoyed by all people and arguably carries a moral force, in addition to an ideological and political one.
Unfortunately, the anniversary of the Declaration comes at a time when America’s historical role as a leader in the human rights movement and its moral standing in the world is severely damaged. On January 11th, one month after the world celebrates the UDHR, America will mark another solemn anniversary – seven years since the first detainees were brought to the prison at Guantánamo Bay. Gitmo has become a symbol for the Bush administration’s worst excesses – including indefinite detention, torture, and unconstitutional military commissions.
Juxtaposed against the UDHR, particularly Articles 5 and 9 which clearly state…
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
No one shall be subjected to arbitrary arrest, detention or exile.
… U.S. policies and practices have illustrated a blatant disregard for international law and human rights.
We now stand at a pivotal turning point. With new leadership, the United States has the potential to regain its moral standing in the world.
As part of our efforts, we are calling on President-elect Obama to close the Guantánamo prison and end the military commissions on day one of his presidency. We are collaborating on videos with Brave New Foundation containing direct testimony from those with firsthand knowledge of the system of injustice that thrives at Gitmo.
Join our efforts to urge President-elect Obama to give us back the America we believe in.
Celebrate the UDHR at 60 with the ACLU. Visit www.udhr60.org and sign the ACLU’s petition calling on the government and newly elected president to recommit to the UDHR. On December 10, the ACLU’s efforts will culminate in the online launch of an exclusive publication about the importance of the UDHR.
Last week, Barack Obama was interviewed by Steve Kroft of 60 Minutes and the following exchange occurred:
Kroft: There are a number of different things that you could do early pertaining to executive orders. One of them is to shutdown Guantanamo Bay. Another is to change interrogation methods that are used by U.S. troops. Are those things that you plan to take early action on?
Obama: Yes. I have said repeatedly that I intend to close Guantanamo, and I will follow through on that. I have said repeatedly that America doesn’t torture. And I’m gonna make sure that we don’t torture. Those are part and parcel of an effort to regain America’s moral stature in the world.
Obama’s statement was widely celebrated as evidence that he intends to act swiftly and decisively to end the Bush administration’s most controversial detention and interrogation policies. But that reaction overstates the meaning and importance of what Obama actually said.
Obama’s response to the question that was asked was perfectly satisfactory as far as it went. He was asked whether he intends to close Guantanamo and “change interrogation methods” and he answered “yes” to both. It would have been rather shocking if he had answered any other way. Could one even imagine Obama proclaiming that he intends to leave Guantanamo open or that he intends to leave unchanged Bush’s interrogation programs?
Read more…
CNN reported today that a federal judge ordered the release of the five Algerian detainees who have been held at Guantanamo for nearly seven years without charges. The judge also ruled that the government may continue to hold another one of the Algerians indefinitely.
For more on Guantánamo Bay Prison and why it should be closed, check out www.closegitmo.com
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