Yeah, it's pretty audacious. I'm a little scared of what an Obama DOJ will look like, but at least they'll be probably less inclined to take outrageous positions on Uighurs.
 

I believe I called this one.
 

Terrorists are generally none too happy with the United States when they are lawfully captured and detained. The ones we have mistakenly released have had a nasty habit of shooting at us in Afghanistan.

That being said, the subject of whether these former prisoners present a clear and present danger to our population or those of all the countries that have also refused to accept them is secondary to the true issue: whether a court can arrogate yet another power of the elected branches in the name of habeas corpus - the power to regulate immigration.
 

I don't know which is the worse alternative (not including many others): A top-down policy to delay all Guantanamo releases until Bush is out of office, or that the lawyers working on this are basically clueless. I can't even figure out which is more likely. I suppose the latter.
 

Let's apply the Reply Brief theory to this situation:

A convicted criminal after 20 years in jail is exonerated with strong DNA evidence of his innocence but the DA claims that having served such jail time makes him a threat to society so that he should not be released from jail despite his innocence.
 

Charles Gittings says in the previous post that the Uighurs' motion to have the Parhat panel hear the appeal was denied. But does anyone know whether the merits panel will be the same as the one that granted the stay?
 

The current stay is temporary pending the governments motion for a stay pending appeal. You'll find the orders and documents in the archive on the PEGC website...

See docs for CAD in the folder for Kiyemba, and go by the dates.

DDC docs will be found in the folder In_re_Gitmo_II, and again, go by the dates.
 

Tray,

How exactly could an Obama DOJ be any worse than the current one?

DOJ is nothing but a crime syndicate now.
 

I think it's time for someone to up the ante and start pushing for T or U Visas for these guys.

Certainly they were human trafficking victims and certainly they have information that would be necessary for any credible torture investigation to be finalized.

Pretenses need to be dropped on this being anything other than what it has been - human trafficking for human experimentation and torture. Buying people overseas to ship them to an experimentation facility that was hoped to be "beyond the reach" of law and then subjecting them to isolation experiments, sensory deprivation experiments, abuse and torture for experimentation into "enhanced techniques" etc.

All with no regard to innocence of the commsion of crime or of status as protected persons.

The real concern of Gov is that the Uighurs and many others like them who were never enemy combatants against the US, are walking and talking prima facie evidence of war crimes in the context of violation of the prohibitions of the Geneva Conventions against shipment of protected persons outside the country.

Putting the victims of US war crimes onto US soil opens up jurisdictional avenues that they don't want to see opened, even after the successful shut downs to date of the el-Masri and Arar lawsuits (the el-Masri dismissal was the most disgraceful moment in US jurisprudence since the internment cases).

If for nothing more than the impact of forcing the terminology of truth to a more prominent position, they ought to consider a T or U Visa application approach.
 

Since 9/11, this administration has consistently acted out of fear. Blind, irrational, "there's something under my bed" fear for their own personal safety. The kind that can only be hidden behind "Bring'em on" style bravado. You can see it in their eyes, just go back and look at those public appearances in late 2001 through 2003. You can read in their own words in the memoirs that have come out. Most of all, you can pick it up in countless little lies they told, puffing up non-entities like Jose Padilla, Abu Zubayedah, and Salim Hamdan into master terrorist boogeymen.

Clearly, the Uighers are no threat to the U.S., but the DOJ and their political masters in the White House are worried about their own skins.
 

Just for comparison's sake, here's a battlefield detention case from Pakistan. The government requested an additional week of detention, were granted only 2 days.
 

How exactly could an Obama DOJ be any worse than the current one?

I wouldn't say they'd be worse, but I foresee them taking positions I wouldn't like, enforcing Section 5 of the Voting Rights Act in ways I wouldn't like - that said, we will hopefully see a much more reasonable stance on torture and detainees from an Obama DOJ.
 

In the Bush Kerry debates, Bush said this in response to a question asking him what mistakes he had made:

"Now, you asked what mistakes. I made some mistakes in appointing people, but I'm not going to name them. I don't want to hurt their feelings on national TV."

Apart from Abu Ghraib, we know now that he was torturing people under his direct orders, and keeping it secret. Maybe, using a toddler's level of moral development he thought that if he didn't tell the public, then it didn't really happen.

Bush ever admitting that he has made a serious mistake is inconceivable. If it happened, and he is responsible, then it was not a mistake. This is the drive behind all his legal motions: not respect for the law, but his inability to conceive that he could possibly make a mistake, ever.
 

From the House Judiciary hearing with Addington and Yoo back in June...

REP. NADLER: Mr. Addington, you stated to Ms. Wasserman Schultz earlier in this hearing that your involvement in the CIA interrogation program was greater than your involvement in the military program. What was your involvement in the CIA interrogation program?

MR. ADDINGTON: We had a number of meetings, as you might imagine. An example was the one I described earlier with the Justice Department to obtain legal advice on the program. A number of the lawyers in the relevant parts of the executive branch would be involved in working on the legal advice on such a matter.

REP. NADLER: Why was the -- well, first, you just said that you're not part of the executive branch in the vice president's office, but leave that aside.

MR. ADDINGTON: With a number of lawyers. I was referring to --

REP. NADLER: Okay.

MR. ADDINGTON: All I am, sir, is an employee of the vice president.

REP. NADLER: Why was the lawyer for the vice president's office involved in CIA business?

MR. ADDINGTON: As you know, in modern times, vice presidents often provide advice and assistance to presidents. In fact, that's what they spend the majority of their time doing. Vice presidents are not in charge of anything. They simply gather information. They provide advice. They have whatever functions presidents give them, but it's basically advice and assistance.

REP. NADLER: And, as such, they participate in the various agencies' business?

MR. ADDINGTON: No. Congress has recognized that function. If you look at Section 106, Title 3, the modern president is provided advice and assistance, and they provide staffs. Part of the vice president's staff is paid for under the appropriation that goes with the statute I just cited. Part of the vice president's staff is paid out of the legislative branch appropriation. And when the president's staff wishes to have us participate and provide advice, then --

REP. NADLER: So the president asked you, in effect, or someone on behalf of the president authorized that?

MR. ADDINGTON: We were included because it is the practice in this administration, stronger at some times than others, but generally, that the president's staff and the vice president's staff --

REP. NADLER: In other words, pursuant to the president's --

MR. ADDINGTON: Working together.

REP. NADLER: Okay, pursuant to the president's authorization. Did you have any involvement in the CIA's decision to destroy any interrogation videotapes?

MR. ADDINGTON: To destroy? No, sir.

REP. NADLER: Okay. If the CIA program is found to be unlawful, would you bear any responsibility for that?

MR. ADDINGTON: If the CIA program is found to be unlawful --

REP. NADLER: Yes.

MR. ADDINGTON: -- would I bear responsibility?

REP. NADLER: Any responsibility. I didn't say --

MR. ADDINGTON: Is that a moral question? A legal question? I mean, let me distinguish --

REP. NADLER: Interpret it as you will, either way.

MR. ADDINGTON: I believe -- and I'm somewhat sympathetic to the approach Professor Schroeder took -- that the legal opinions issued by the Department of Justice, to the extent they are relied upon by those who are implementing the president's --

REP. NADLER: No, we're not talking about legal opinions -- excuse me. We're not talking about legal opinions at the Department of Justice. Given your involvement in discussions with the CIA, did these discussions implicate what they did? And if what they did was unlawful, would your discussions have any bearing on that? That's my real question.

MR. ADDINGTON: No, I wouldn't be responsible is the answer to your question.

REP. NADLER: Thank you. Mr. Yoo --

MR. ADDINGTON: Legal or moral.
 

Mary said...

I think it's time for someone to up the ante and start pushing for T or U Visas for these guys.

Please call the Obama campaign immediately and repeatedly demanding that Obama "up the ante and start pushing for T or U Visas for these guys."

Let me know the response you get.
 

Now comes the Bush administration to teach us something we never knew. All these centuries we thought habeas corpus was a linchpin of freedom, but it has had a latent flaw that escaped notice. Until now that is, as the following analysis demonstrates:

1. If the king arbitrarily detains a man, the man can't be let out of jail, otherwise the first thing he will do is kill the king.

2. The more arbitrary the detention, the weightier this consideration. And if it holds in a horrendous case, it applies in any case, since the greater includes the lesser.

3. Where there is no remedy, there is no right.

4. Hence there is no such thing as unlawful detention; the Great Writ collapses under the weight of its illogic.

A th- a th- a th- that's all folks.
 

Audacious? Try chutzpah, the classic definition of which is the kid who kills his Mom and his Dad and throws himself on the mercy of the Court, because he's an orphan.

That's about what DoJ has argued here: we threw these people in prison without a reason, locked them up and threw away the key, held them for six years, without charge or trial or any real hearing, and mistreated them all the while. Therefore there they must stay, because, you know, now they don't like us very much.

That seems like chutzpah to me.

At the heart of chutzpah is arrogance, not courage. Such is this administration. I'm told its head war criminal is searching for his legacy; arrogance, utterly unjustified by the facts, is likely to figure in it. So wrong for so long.
 

Bart,

Releasing them is not an arrogation of power over immigration. They're already in the United States, and they are in the US legally since they were brought in against their will by the US government. Legal fantasies about the status of Guantanamo aside, the fact is that they are in US custody on soil over which the US has complete control and the only place the US can move them to without the permission of another country is US territory.
 

Audacious? Try chutzpah, the classic definition of which is the kid who kills his Mom and his Dad and throws himself on the mercy of the Court, because he's an orphan.

The DOJ here is worse than the orphan. The orphan is asking for mercy for himself; the DOJ is asking for additional punishment for its victim. An analogy would be if the "orphan" had only injured his parents and now wants to hurt them more them because they don't like him anymore.
 

OO states the matter elegantly.

The DOJ lawyers responsible for these cases are criminals, and that is all that they are.
 

It is perhaps not inappropriate to recall the actual wording of writs of habeas corpus ad subjiciendum:

(i) Originally:-

"Praecipimus tibi quod corpus A.B. in prisona nostra sub custodia tua detentum, ut dicitur, una cum die et causa captionis et detentionis suae, quocumque nomine praedictus A.B. censeatur in eadem, habeas coram nobis ... ad subjiciendum et recipiendum ea quae curia nostra de eo adtunc et ibidem ordinare contigerit in hac parte. Et hoc nullatenus omittatis periculo incumbente. Et habeas ibi hoc breve."

The form of the writ has changed little since it became usual to translate it. I understand that this is the usual US Federal form:-

"The United States of America, Second Judicial Circuit, Southern District of New York, ss.:

We command you that the body of Charles L. Craig, in your custody detained, as it is said, together with the day and cause of his caption and detention, you safely have before Honorable Martin T. Manton, United States Circuit Judge for the Second Judicial Circuit, within the circuit and district aforesaid, to do and receive all and singular those things which the said judge shall then and there consider of him in this behalf; and have you then and there this writ.

Witness the Honorable Martin T. Manton, United States Circuit Judge for the Second Judicial Circuit, this 24th day of February, 1921, and in the 145th year of the Independence of the United States of America."

It has always been my understanding that since 1305 or thereabouts there have been three stages to the habeas corpus procedure:-

(i) proceedings on the application (US=petition) for the writ to issue at which stage the applicant (petitioner) must make a showing that there is an arguable case for the writ to issue.

(ii) If the Court so determines, the writ issues, is served on the jailer who transports the body of the prisoner to the Court and on the return date produces him physically to the Court together with the documentation authorising his detention at which point:

(iii) there are proceedings on the return to the writ.

It is only on the return date that the Judge becomes entitled to proceed to determine whether the prisoner should continue in custody or be bailed or released.

It does seem therefore that the Government's motion for a stay is misconceived in form and, perhaps, premature. These were the opening words of the Motion:-

"Three days ago, the district court ordered the Government to transport 17 Chinese aliens detained at Guantanamo Bay, Cuba, to Washington, D.C. for unconditional release into this country."

As I understood the proceedings before Judge Urbina there is no final determination as to what should happen on the return date and he has determined that he should hear evidence from the Government.

The praying in aid of immigration law seems to be utterly misconceived. The US military transported many prisoners of war from Europe to the Continental USA during WW2. I do not suppose that the US granted those POW's immigration visas during that process.

Nor do I recollect any example of US Marshals bringing an alien from overseas to be arraigned before a US Court on a criminal matter being told by the INS at the port of entry that the prisoner could not land for the purpose of being taken in custody to the competent Court and would have to be returned to the point of origin. Immigration status becomes relevant if and only if the prisoner is discharged from legal custody (for example after service of sentence or acquittal).

So, in effect, on proper analysis, what the Government is seeking to do is subvert the writ itself - i.e., to pre-empt the process which must take place by operation of law between the decision that the writ should issue and the decision (not yet taken) on the return date for the writ.

Yet the Supreme Court held in Boumediene that the remedy existed and was in principle available to a person in US custody - no matter where held. Which must, as a matter of necessary implication entail the production of the individual before the Court having jurisdiction on the return to the writ once issued.

So should the Circuit Court of Appeals not simply say to the Government that the the motion for stay is premature until there has been a decision upon the return to the writ?

Matters of form have their importance and I suggest that in the case of the so-called "Global War on Terror" there has been far too much of the Government seeking to make things up as they go along.

Is it not about time for the Courts to determine that those representing the Government start playing by the rules instead of seeking to pull the wool over the eyes of the bench.
 

billposer said...

Releasing them is not an arrogation of power over immigration. They're already in the United States, and they are in the US legally since they were brought in against their will by the US government.

Gitmo is not the United States under immigration law. The court has the power to order their release, not to immigrate them contrary to law.

Legal fantasies about the status of Guantanamo aside, the fact is that they are in US custody on soil over which the US has complete control and the only place the US can move them to without the permission of another country is US territory.

Hardly. The judge can properly order the military to fly these former terrorists to Bagram AFB in Afghanistan and kick them out the front gate. Afghanistan is where these terrorists were based.
 

Mourad:

Judge Urbina's order has nothing to do with habeas corpus ad testifacandum (ordering the government to bring the prisoner before the court to offer testimony). The military is no longer seeking to detain these former POWs. The issue is no where to release them. Urbina is unlawfully immigrating and releasing them into the United States on their own recognizance.
 

Bart,

Your lying BS was stale long ago -- we have more reason to believe YOU are a terrorist than any of these detainees.

A judge has no authority to order a kidnapping.

The detainees were captured in Pakistan, not Afghanistan. They were then illegally sold to the US who illegally deported them to de facto US territory in Guantanamo Bay for the purpose for torturing and unlawfully detaining them.

The executive branch has exactly the same obligation to obey the law that the judicial branch does. The only real problem here is that they've been committing war crimes against prisoners by policy from the start.

The Bush administration doesn't want to transfer them to Afghanistan. One presumes the Afghans could offer them asylum were they so inclined. Why would a judge order any such thing?

This is just the same old story: you disgraceful fascists are lying in order to rationalize and excuse your crimes. These detainees are nothing but victims, and you and George Bush are nothing but MURDEROUS CRIMINALS.
 

Bart De Palma in his ignorance writes:-

"Judge Urbina's order has nothing to do with habeas corpus ad testifacandum [sic] (ordering the government to bring the prisoner before the court to offer testimony)."

Apart from the fact that our pet loathsome spotted reptile has problems with his Latin: the writ he refers to is "ad testificandum", he is also discussing the wrong writ - which is habeas corpus ad subjiciendum - aka "the Great Writ".

I suppose our LSR has never actually applied for the writ (I have) and I can assure him, a Judge can and often does require the body of the prisoner to be brought to the Court, not least because in immigration or extradition cases there may have to be terms set for release pending further determination.

Our LSR also seems to have problems with the English language: "immigrating" is an intransitive verb and I do not think Judge Urbina is "immigrating", whether lawfully or unlawfully: in fact I understand he was born in Manhattan.

I also suspect Judge Urbina knows a lot more immigration law than our LSR - since I note that in the transcript he ordered the Government to have a representative of the Department of Homeland Security present at Court.

I suggest Bart also looks at Title 8, Chapter 12, Subchapter II, US Code, § 1226a where he will find that the procedures for the detention of suspected terrorists are also reviewable in habeas proceedings in the US District Court for the District of Colombia.

The problem is that were the AG to certify that these detainees were to be detained there might be some problem in showing the determination to be even rational - let alone reasonable.

So the Government is seeking to avoid the court getting to that stage - as it otherwise would have to do on the return date.

Seems the DOJ is full of loathsome spotted reptiles as well.

Still, the infestation may shortly be eradicated.
 

Charles:

Precisely what law would Judge Urbina be violating by returning ex POWs to the battlefield from which they were captured? These heroes all admitted they were living in a terrorist camp on Afghanistan before we bombed it and they fled.
 

mourad said...

I also suspect Judge Urbina knows a lot more immigration law than our LSR - since I note that in the transcript he ordered the Government to have a representative of the Department of Homeland Security present at Court.

Judge Urbina did not offer a single legal basis for his violation of immigration law in his order. I suspect he will be reversed on appeal.
 

Poor Bart still does not seem to get it.

For the record, the very reason that prisoners were located at Guantanamo was because some DoJ lawyers mistakenly thought that this would place the prisoners beyond the reach of a habeas corpus writ. They were wrong. The US Supreme Court has said so.

1. The issue on a habeas corpus application is whether the government has a lawful basis for detaining the applicants. If the government can show cause, then it may continue to detain them. Thus far, the government has not made that showing.

2. On the return date, the government can still show cause why the applicants should not be released unconditionally (for example, on immigration grounds); if so, the court will have to determine whether they should be placed in the custody of the INS, or released conditionally or unconditionally.

3. If the applicants have done no wrong, the Court has no inherent power in habeas proceedings on the present detention to order the applicants to go anywhere. It must either decide that the original grounds of detention were lawful or order their immediate release.

4. If the Government could on the return date make a good showing of cause to detain them on other (eg immigration) grounds, then I imagine the Court could simply elect to consider the immigration issue as arising on a fresh habeas application and it could order their release on such conditions as it thought fit pending resolution of that issue.

5. Since the US Government has already conceded that (i) the applications are nationals of a 3rd country and (ii) to return them to that country would not be lawful, then the only option at present is ultimate release or their voluntary acceptance of an arrangement whereby they become refugees to a safe third country (as to which the Government has already shot itself in the foot).

Judge Urbina has not ordered any immigration measure. He has ordered prisoners in US custody to be brought into his Court in accordance with hundreds of years of precedent.

It will be interesting to see if Bart is able to point to a single precedent for the US military being required to obtain immigration clearance to bring a prisoner into the USA, or for that matter of the INS being able to prevent a US Marshall taking a prisoner arriving at JFK to the court which has issued the warrant.

So if the Court is able to issue a writ of habeas corpus ordering a prisoner brought to the court - and that is what Boumediene said the Court could do, why does Bart consider the Court has acted outside the law?

I would not care to predict the outcome of the present motion. But I suspect it is going to take some nimble footwork to wrong-foot habeas precedent and, in any event one has cause to hope that there will be a great cleansing of the DoJ stables in the not too distant future.

One think however is certain: any of the potential defendants to criminal or impeachment process arising out of this whole sorry "unlawful combatant" débacle might be singularly ill-advised to retain our pet loathsome spotted reptile as counsel.
 

The US Judge cannot order that the US held detainees be released on foreign soil without consent from that foreign gov. That's why he cannot order the shipment to Afghanistan.

These men are not ex-POWs. The human trafficking transactions by the Bush administration for interrogation experimentation at GITMO were not even argued by Gov to involve POWs -but rather "illegal enemy combatants."

US courts have deteremined that these men were never US enemies, and never combatants against the US and never engaged in any illegal warfare. IOW, they were protected persons under the Geneva Conventions when they were sold.

The Sup Ct has ruled that release is a remedy for these men. All the argument of "would, could, should" on the release constituting "immigration" is being made too late now, bc the Court has already ruled on the existence of release as an available remedy.

What hasn't been ruled upon is how that release would be handled and that's probably something the court would rather not have to address. It's why I think they ought to put in for T or U visas for these men (and Bart, at a minimum I'm pretty positive that no one other than you thinks a political campaign is the appropriate entity to file visa applications - not that I'm on favors terms with the Obama-ites).

You would then have the allegations of abuse and torture and trafficking and let DHS find someone non-conflicted and make their ruling and lets see where it falls on the arbitrary and capricious standard, especially when you have the perpetrators of the human trafficking and torture claiming that they can make a non-abusive determination of whether or not their victims qualify.

It frames another aspect of the issue and also gives an avenue to apply some actual guidelines and standards to the otherwise strictly judicially crafted remedy of release.

Not to say that the release can't take place without the visas - the S. Ct has already held that avenue is available. But rather to say that not only does it frame the issues in yet another venue but it also provides an approach that would serve to have standards and guidelines that attach to the release into the US.

Meanwhile, the Traverse on the habeas petition is online

http://www.motherjones.com/mojoblog/Unclassified%20Traverse.pdf

I especially like the "evidence" from the FBI interviews with Arnaout that was withdrawn at the last minute.

There's not really anything much in the way of fraud on the court that DOJ hasn't made a solid pass at, is there?
 

"Precisely what law would Judge Urbina be violating by returning ex POWs to the battlefield from which they were captured? These heroes all admitted they were living in a terrorist camp on Afghanistan before we bombed it and they fled."

Is that supposed to be a question Bart?

Looks more like three or four lies to me, but the answer is obvious enough: he'd be violating the same laws as he would by ordering you exiled to Antarctica without just cause.

Immigration law isn't something that interests me much, but when exactly did the government start deportation proceedings against these detainees?

And why would anyone suppose they are immigrants?

They didn't attempt or apply to enter the United States, they were forcibly brought to de facto US territory against their will in violation of every applicable law. What they really are is the victims of events and crimes which made them refugees, and the most pertinent law now is arts. 32 and 33 of the Convention relating to the Status of Refugees.

The reality is that there aren't any valid national security reasons to keep them in a prison: it's just petty malicious dishonesty and fraudulent sophistry on the part of liars like you. The truth is that folks like you and David Addington are a greater danger to the United States than any of these detainees are -- they are merely crime victims where you fascists are murderous criminals.
 

mourad said...

For the record, the very reason that prisoners were located at Guantanamo was because some DoJ lawyers mistakenly thought that this would place the prisoners beyond the reach of a habeas corpus writ. They were wrong. The US Supreme Court has said so.

No, DOJ was right about the law. The Boumediene Five changed the rules as the dissent correctly observed.

1. The issue on a habeas corpus application is whether the government has a lawful basis for detaining the applicants. If the government can show cause, then it may continue to detain them. Thus far, the government has not made that showing.

No kidding. The military does not claim a basis to detain them and are trying to release them.

2. On the return date, the government can still show cause why the applicants should not be released unconditionally (for example, on immigration grounds); if so, the court will have to determine whether they should be placed in the custody of the INS, or released conditionally or unconditionally.

Our immigration law does not grant Judge Urbina any such power nor did he bother to claim it did.

3. If the applicants have done no wrong, the Court has no inherent power in habeas proceedings on the present detention to order the applicants to go anywhere. It must either decide that the original grounds of detention were lawful or order their immediate release.

I agree. That is how habeas corpus is supposed to work. However, habaeas corpus has never been extended to foreign POWs held overseas before. The courts are making up the law as they go.

I prefer to stay with the original purpose of habeas corpus to either approve the detention or order the release and allow the military to determine where the release will occur. Judge Urbina thinks he has the power to make that decision himself. If he does, then he should order their release to the battlefield from which they were captured or their home country. He would not violate US law with either decision. He is violating US immigration law by admitting them into this country.

4. If the Government could on the return date make a good showing of cause to detain them on other (eg immigration) grounds, then I imagine the Court could simply elect to consider the immigration issue as arising on a fresh habeas application and it could order their release on such conditions as it thought fit pending resolution of that issue.

The government does not claim to be detaining them. They have the run of the facility, but simply have no other country that wants them.

5. Since the US Government has already conceded that (i) the applications are nationals of a 3rd country and (ii) to return them to that country would not be lawful, then the only option at present is ultimate release or their voluntary acceptance of an arrangement whereby they become refugees to a safe third country (as to which the Government has already shot itself in the foot).

POWs have no say in where they are released nor does the county have to be safe.

Judge Urbina has not ordered any immigration measure. He has ordered prisoners in US custody to be brought into his Court in accordance with hundreds of years of precedent.

Nonsense. Give me a single US precedent where a court has ordered the immigration of foreign POWs and ordered their release on what is essentially a personal recognizance bond. Judge Urbina offered no such authority and neither did you.

It will be interesting to see if Bart is able to point to a single precedent for the US military being required to obtain immigration clearance to bring a prisoner into the USA, or for that matter of the INS being able to prevent a US Marshall taking a prisoner arriving at JFK to the court which has issued the warrant.

Such prisoners are not being released into our population. They are being imprisoned inside the US.

So if the Court is able to issue a writ of habeas corpus ordering a prisoner brought to the court - and that is what Boumediene said the Court could do, why does Bart consider the Court has acted outside the law?

The only basis to order a prisoner brought to court is because his testimony is required to determine whether he is being properly held. Judge Urbina made it quite clear that this admission was to release the prisoners in this country because they had no other country willing to accept them. This is beyond the power of the court.

I would not care to predict the outcome of the present motion. But I suspect it is going to take some nimble footwork to wrong-foot habeas precedent and, in any event one has cause to hope that there will be a great cleansing of the DoJ stables in the not too distant future.

Urbina will be reversed on appeal and a hypothetical Obama Administration will not want to admit these or any further terrorists unless they want to lose Congress in 2010 and be given the boot themselves in 2012. Thus, my previous taunt to Mary that she ought to demand that the Obama campaign call for such immigration and see what response she gets. They are not suicidal.
 

"Thus, my previous taunt..."

Ha. Your taunts don't reflect anything but your own delusions and malice Bart.

As for the election, I'm not making any assumptions about anything one way or another, but I can tell you this much right now -- Barack Obama is lot more honest and intelligent than you or George Bush ever will be. If he's elected, things are going to change for the better.
 

Charles:

Obama is a serial liar about is prior leftist stands and far left associations in order to maintain the centrist facade of his campaign. Indeed, he routinely jettisons is prior stands taken during the primaries and tacks to the right in order to maintain that facade to be electable. Note Obama's calculated betrayal vote to gut FISA which you and others claimed to be some sort of an attack on the Bill of Rights.

My only question is whether a President Obama would continue this centrist facade ala Clinton in order to maintain power or would abandon this centrist facade and openly adopt the Jimmy Carter foreign policy he appears to favor.

In the case of the former, Obama will betray you on the left repeatedly as did Clinton in order to remain popular and electable. There is no way in hell a centrist would allow Gitmo terrorists to immigrate into the US.

In the case of the latter, Obama will be a one term disaster like Carter who will be rolled by enemies and allies alike and who will get Americans killed.
 

Jesus, 'Bart,' you're a goddamn loon. A loony tune. A lying little creep. Why do you trash this site w/ your adolescent hate fantasies? Why does the management allow your drivel? I'll tell you what, bottom feeder, I'm no lawyer (as I suspect you aren't either) but when you start repetitively gurgitating mindless character smears you lay what's left of your putrid, decayed soul out for anyone to see. For Christ's sake, you poor demented child, do yourself a favor give it a rest.
 

That's a pretty funny accusation coming from someone as dishonest as you are Bart, and I'm sorry -- your delusions are your problem.

I'm an anarchist, which by my own understanding of the term means I'm opposed to tyranny, bigotry, and dishonesty. The sophomoric notions of left and right that pass for political discourse in this country simply do not interest me that much, which is why I quit voting at all when I could no longer continue to support the Republican Party after the crimes of the Nixon and Reagan administrations. The only reason I'm a voter now is that I draw line where fascists who are willing to violate the IMT Charter are concerned, just as I draw the line with slavery, murder, rape, and other crimes of violence. There's just no excuse for that sort of thing, and there is nothing more dangerous than to tolerate tyrants like George Bush and Dick Cheney or the sociopaths who support such gangsters.

I just know way too much history Bart -- and way too much about liars like you, especially the elaborate webs of self-deception you construct. Barack Obama is a serial liar to you because you live in an alternate universe where anyone who tells the truth about any of your own lies is a liar by definition. It's impossible to actually have a conversation with you about any non-trivial proposition simply because you neither listen nor speak, but simply emit noise.

Hence civilians who have been falsely accused of terrorism are POWs simply because it is convenient for you to label them so, and inconvenient to observe that the actions of the Bush administration were not only mistaken but in fact criminal. Hence the law degenerates into a silly game of heads you win and tails they lose, and no fact or logic even matters -- because the first person you lie to is always yourself.

The bottom line on you nut-jobs is simple: your results speak for themselves.
 

Conrad's Ghost wrote:-

"Jesus, 'Bart,' you're a goddamn loon. A loony tune. A lying little creep. Why do you trash this site w/ your adolescent hate fantasies?"

Quite some weeks ago I posited that the best descriptor of poor Bart could be found in the immortal words of the late Peter Cook:-

"He is a man who by his own admission is a liar, a humbug, a hypocrite, a vagabond, a loathsome spotted reptile and a self-confessed chicken strangler. You may choose, if you wish, to believe the transparent tissue of odious lies which streamed on and on from his disgusting, greedy, slavering lips. That is entirely a matter for you."

Watch the complete sketch see: Entirely A Matter For You - Channel 4

But in answer to your question, poor Bart has already vouchsafed to us in previous posts why he lurks on this site and from time to time crawls out from under his rock to post his "transparent tissue of odious lies". He sees himself as filling a propaganda role for what he characterises as "conservative" views.

It goes without saying that in the strange lexicon of this lunatic fringe of the US political scene, "liberal" is a term of abuse and "conservative" does not have the mainstream connotation that it does in British or European politics. Those whom Bart considers "conservative" may be more accurately characterised as nazi or fascist and just like their political forebears, they approve of: (i) detention without trial on the say so of the executive; (ii) officially sanctioned torture and inhuman and degrading treatment and (iii) an unaccountable executive under a supreme fuhrer, duce or caudillo complete with a subservient judiciary.

Bart probably sees himself as some kind of future Gauleiter of Colorado with his own little concentration camp into which he will consign by executive order all those who are disagreeable to him: democrats, intellectuals, trade unionists, gays etc, etc.
 

In the case of the latter, Obama will be a one term disaster like Carter who will be rolled by enemies and allies alike and who will get Americans killed.

I think I'll paste this one into my right-wing-foamer folder for future reference.

Charles is right, Bart. You justify the crimes of your autocratic executive with cartoonish labels. You don't believe in due process, only your reptilian id. Fascists like yourself are nothing but frightened little children. With guns.
 

As a contrast to the views of LSR Bart on the likely impact of an Obama presidency, readers may care to note the considered judgment of the Republican former Secretary of State General Colin Powell Powell endorses Obama for President [traffic on the site is a little
heavy just now].

And as an aside, I doubt the voters of Colorado need worry too much about the prospects of Bart in the role of Gauleiter: if his forensic skills are anything to go by, he'd not be that effective - the kind of incompetent loon who'd try to take a leak on the electric fence of his own detention camp: Shocking Thought.
 

Mourad:

This is Powell's payback for being ignored and given the heave ho as Sec State.

Powell and the GOP used one another as a political convenience. However, Powell was always a cautious military bureaucrat with center-left domestic leanings and as such not really a Republican.

You will notice that Powell did not come out for Obama until he thought that Obama would win. Powell is not decisive and cannot make the tough decision when the outcome is in doubt. Powell is seeing a kindred spirit in Obama.
 

" Powell is not decisive and cannot make the tough decision when the outcome is in doubt. Powell is seeing a kindred spirit in Obama." -- bart depalma

Whenever a tough problem emerges, Republicans have, of late, taken no action and then blamed the problem on people being too liberal.

See:

Many Republicans says Global Warming isn't a real problem. And we can avoid any decisions on reducing carbon dioxide emissions for now. Warnings of the dangers of doing nothing are said to be mostly the imaginings of a giant liberal scientific conspiracy.

Some Republicans are saying that the financial crisis wasn't caused by a lack of action in enforcing rules and oversight requirements. It was caused by poor liberal black people getting loans.

America isn't "winning" in Iraq not because Bush had no historical insight and no plan for what he was doing post-invasion and couldn't decide how he wanted it run (see PBS's front line documentary on the Iraq war), but because liberals continually question its legal basis and the way it has been run.

No "weapons of mass destruction" were found in Iraq not because there were likely none there, and any that were there would have been looted out of depots because there were no plans to secure them, but because of liberals merely questioning their existence.

The problem of Gitmo not having a reputable legal system isn't because Bush didn't decide to use current (United States and International) military law, which had been historically proven to be up to the task, and instead, in a panicked way, devised a new, largely secret, quasi-military justice system amazingly allowing evidence obtained by torture and no absolute necessity for the speedy identification and release of innocent people. Instead, the problems are said to be all because of activist liberal court judges, some of whom Bush appointed, and lawyers questioning his saintly plans.
 

This is Powell's payback for being ignored and given the heave ho as Sec State.

From Baghdad's blog..

2) Powell is seeking revenge for being first ignored and then essentially pushed aside as Sec State in the Bush Administration. However, Powell has always been the dutiful soldier and has not demonstrated this level of pettiness.

3) Powell is endorsing Obama out of racial solidarity. Unfortunately, given the greater improbability of the first two possibilities, I am forced to assume that this is the most likely motivation for Powell's endorsement.


Baghdad, you need to do a better job of keeping your bullshit on message.
 

Meanwhile at the US Court of Appeals for the DC Circuit, the case has indeed been kicked into touch until after the election.

Scotusblog has the order Here.

The dissent of Rogers CJ is appended to the Order. I do not know how common it is for a US Judge to write a dissent to an interlocutory order such as this, but it is in what seem to me to be strong terms.

Oral argument is scheduled for 24th November - i.e after the election but before the transfer of power to the next administration.

Judge Henderson is, of course, the author of the primary opinion in the regrettable decision in Rasul –v- Myers which could be described as the Administration's "get out of jail free card" for the ill-treatment of detainees.

In her opinion Judge Henderson ruled against the detainees’ claims under the Alien Tort Statute and the Geneva Conventions, finding defendants immune on the basis that “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants.” Finally, the Court found that, even if torture and religious abuse were illegal, defendants were immune under the Constitution because they could not have reasonably known that detainees at Guantánamo had any constitutional rights.

Whether Rasul was rightly decided will be for another day because it has been appealed, but Judge Henderson's opinion in that case certainly makes one wonder whether the real issue in this kind of case is (i) whether US human rights law is defective or (ii) whether some US Judges are unfitted to protect such rights.

[Note: this inadvertently also posted on the previous thread on the same subject].
 

Some Developments:

1. In the Uighur case, the applicants have petitioned for an en-banc hearing. Scotusblog has the petition Here.

2. In the Boumediene case, there is an oral hearing schedule today before Judge Leon to argue the meaning of "enemy combatant". Scotusblog has the applicants' brief here and the Government's Response here.

Scotusblog's post on the subject here points out that the applicants' case is rooted in established law of war precedent while the Government argues for an expanded "we can detain whom we want to" approach and points to a conclusion in the Government's case:-

"By seeking to limit the authority of the United States to detain militarily al-Qaida members, supporters, and associates captured away from a traditional battlefield, petitioners fundamentally question the legitimacy of prosecuting the global war against al-Qaida terrorism as a war, rather than as a police operation seeking criminal charges."

Absolutely so. Others far more eminent than me have long contended that this was the fundamental error in the Bush Administration's approach. If Chapter VII authority had been sought from the UN Security Council, that could have authorised emergency detention of civilians in Afghanistan.

As a matter of international law operations in third countries, extraordinary renditions and all the rest were unlawful and by the domestic law of many states where the US took action, not merely unlawful but also criminal.

It will be very interesting to see the conclusions Judge Leon reaches.
 

"As a matter of international law operations in third countries, extraordinary renditions and all the rest were unlawful and by the domestic law of many states where the US took action, not merely unlawful but also criminal."

The domestic laws of the United States included.
 

More Developments:

Regular readers will recall that Binyan Mohamed, a British resident captured in Pakistan and a Guantanamo Bay detainee was to go on trial before a Military Commission to face charges relating to the so-called "dirty bomb plot". On 21st October 2008, it was announced that the charges against him and 4 other detainees were to be dropped after disturbing testimony from the officer formerly conducting their prosecution, Lt. Col. Darrel Vandeveld. (But it was said that new charges are to be considered. The dismissal was "without prejudice". There are also habeas petitions pending before the DC District Court - next scheduled before the Court on 30th October 2008.

But there have also been proceedings before the Divisional Court in the UK in which disclosure of allegedly exculpatory material going to the issue whether alleged confessions had been tainted by torture was sought from the British Government. The UK Court delivered an open and a confidential judgment on 21st August 2008, a further judgment on 29th August 2008 and a further judgment yesterday - all available here: The Queen on the application of Binyan Mohamed - v - Secretary of State for Foreign and Commonwealth Affairs - Judgments.

In the earlier judgments, the Court found that 47 documents held by the UK Government were exculpatory documents which ought to be disclosed to the Defendant's lawyers. The US government stated that if the English Court were to disclose the documents this would put in issue intelligence co-operation between the USA and the UK. A compromise was reached whereby the documents would be provided in the USA, but the US Government has not honoured that agreement.

It is to be recalled that the English Court has seen all the documents in unredacted form. The Court is very clearly most upset that the US Government has gone back on its assurance that the documents would be disclosed in the US proceedings.

In the latest judgment (22 October 2008) the Court says:-

"35. [The Defendant] is held in the custody of the United States at Guantanamo Bay. It is clear on the evidence we have seen that since his initial detention on 10 April 2002 the Government of the United States has had effective control of his custodv, even though other Governments may have acted on their behalf."

[I suggest that the finding that the Defendant was at all material times under US Government control (i.e. that the US Government was apparently sub-contracting torture to third countries) is critical to an understanding of just why the English Court is so concerned.]

The Court goes on to say:-

"38. In our view the challenges made to the conduct of the United Slates Government and the legality of its actions should, save in the most exceptional circumstances, be
determined by the judiciary of the United States."

The Court says this about the relevance of the documents:-

"41. We have considered with the assistance of counsel in closed session whether the decision to provide only 7 [redacted documents to Judge Sullivan] can be explained on the basis that only 7 documents provide exculpatory evidence that supports BM's account. We are satisfied that that cannot be so. In any event all the documents need to be read in sequence to see the proper context. As the United Kingdom Government has made clear since the time when the documents were found and sent to the United States Government in June 2008, all are relevant and potentially exculpatory. We agree with that view and our view is reinforced by reading [The Defendant's] confession and interviews.

42. We have also considered whether it could be argued that some of the documents are material only to the dirty bomb plot [charges now dropped] and others are material only to the allegations of association with Al Qaida and training in Afghanistan. We are quite unable to find any basis upon which such an argument can be advanced. The confession made by [the Defendant] goes to both aspects. The documentation, which lends some support to his claim that the confession was obtained after a period of 2 years incommunicado detention during which he was tortured and subject to cruel inhuman or degrading treatment, applies to all parts of the confession.

41. We have set out at paragraph 17(i) an extract from [the Defendant's] confession. This makes it clear that when he signed that statement he accepted that he had been properly treated when in US Military Custody. Almost all of the allegations made by BM relate to the period prior to his transfer to Bagram in May 2004 when he was transferred to the
custody of the US Military. Thus if this statement is to be relied on, as we assume it is, to show that the confession was voluntary, we would take the view, based on our understanding of fundamental principles of the common law shared by our two nations, that fairness and justice demand that the 42 documents be made available as they are the only independent support in some material particulars for [the Defendant's] case that the confessions were induced in the manner he alleges. A refusal to disclose would in the circumstances now made clear to us by the provision of [the Defendant's] statement form the basis of a powerful contention that the prosecutors were not acting in good faith in discharging their duties to the Court.

44. We understand that Judge Sullivan will be able to see all 42 documents. He will receive the benefit of an answer from the United States Government (denied to us) as to why only 7 documents have been provided. There also may be an explanation for the abandonment of the dirty bomb plot allegation which is in fact wholly unconnected with the decision to disclose only 7 documents. The United States Government will also be able to explain to Judge Sullivan why after all this time the charges have been dismissed and are to be preferred again.

[after discussing redactions]

49. Although this is in one sense an issue of mechanics, it is important to see this in the broader context of the issues relating to public interest immunity. In that context it is
a far more serious matter. The stance taken by the Government of the United States is that it will reconsider the intelligence relationship with its oldest and closest ally if we, as a court in England and Wales, order the documents be provided to [the Defendant's] lawyers, to enable justice to he done. This stance is, we are told, being taken not because there is any desire to delay the provision of documentation that is potentially exculpatory, but because it wishes to do so under the procedures of the Courts and Tribunals of the United States. Thus this "issue of mechanics" could affect the national security of the United Kingdom, if we were to order disclosure.

50. We expressed the view at the hearing on 26 August 2008 that we could not understand why a means could not be found of providing the documents to [the Defendant's]lawyers for use before the Convening Authority. There would now appear to be a means under the United States' own procedures. This is an issue that will he before Judge Sullivan.

On our present understanding of the situation, Judge Sullivan is best placed to resolve these issues, to devise a mechanism for appropriate disclosure and to bring this dispute to an early and just resolution.

[stay until after the US Court has made a ruling]

"54. We therefore accept the submission of the United Kingdom Government that we should stay the matter for a defined period to allow the application to proceed before Judge Sullivan. We will hear the parties on the length of that period. In the light of his decision, the issue may become academic. If not we will have the benefit of understanding the
position of the United States Government and the benefit of Judge Sullivan's views when we proceed to determine the remaining issues in relation to the provision of the 42 documents. These issues include Miss Rose QC's submission that the Government of the United States is deliberately seeking to avoid disclosure of the 42 documents.

55. We must record that we have found the events set out in mis judgment deeply disturbing. This matter must be brought to a just conclusion as soon as possible, given the delays and unexplained changes of course which have taken place on the part of the United States Government."

The Judgment concludes with a little sting in its tail:-

"Restoring the redacted paragraphs of our judgment

56. We heard argument in camera on the issue to which we referred at paragraph 7. The issue can be described as whether we should restore to our open judgment seven very short paragraphs amounting to about 25 lines in which we provided a further summary of the circumstances of [the Defendant's] detention in Pakistan and the treatment accorded to him as referred to in paragraph 87(iv) of our judgment. This arose in the context of the allegation that [the Defendant] had been subjected to torture and cruel, inhuman and degrading treatment and the scope of the offences to which we referred in paragraph 77 of our first judgment. Although the argument took place in closed session, the issue is one of
considerable importance in the context of open justice and we will in due course deliver an open judgment on the issue. We have asked the parties to consider whether, before we decide this issue, we should invite submissions in writing from the media in view of the importance of the issue to the rule of law."

That seems to be an indication that if the precise nature of the sub-contracted torture does not come out in the USA, it will in England. The forthcoming hearing before Judge Sullivan should be interesting.

One is forced to wonder if what is now happening is that the US Department of Justice (that's an ironic title in this context) is simply trying to keep the full torture story under wraps until after the election.

Readers with a concern for human rights may care to send their friends a reminder to vote with this customisable reminder Movenon.org-Video Voting Reminder
 

One is forced to wonder if what is now happening is that the US Department of Justice (that's an ironic title in this context) is simply trying to keep the full torture story under wraps until after the election.

That's no mystery Mourad: these people have been doing everything in their power to stonewall and obfuscate these cases from the start. There isn't a single lawyer on representing the US government in these cases who is anything more or less than a war criminal.
 

A further update on the unravelling of the Guantanamo Bay cases:

On 28th October 2008, a US Military Judge, Colonel Stephen Henley, ruled that a confession the prosecution hoped to use in the trial of Mohamed Jawad - the young person accused of throwing a grenade at US troops - had been obtained by torture and was accodingly inadmissible at trial Reuters Alertnet Report

On 30th October 2008 US District Court Judge Sullivan held a review of the Binyan Mohamed case. According to this New York Times report Questioning ‘Dirty Bomb’ Plot, Judge Orders U.S. to Yield Papers on Detainee, the prosecution had already turned over to the defence the papers the UK Court had considered in the hearing reported in my previous post.

Judge Sullivan ordered the prosecution to disclose any further papers the government held showing what had happened to Mr Mohamed since his arrest in 2002.

The NY Times Report states: "That followed a letter Tuesday from a British government lawyer to the British court’s judges that said the home secretary had referred to law enforcement officials in Britain “the question of possible criminal wrongdoing” in the treatment of Mr. Mohamed."

In fact the letter to the Court was from the Treasury Solicitor (who conducts all UK government civil litigation) and it advised the Court that the Home Secretary had referred the complete file to the Attorney-General to investigate whether there had been criminal wrongdoing.

The UK Attorney-General is The Rt Hon the Baroness Scotland QC. She has a very strong human rights background and I have no doubt that she will require a very thorough investigation.
 

My best friend is the one who brings out the best in me.
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