Military Commission

By:  Andrea Prasow

The Guantánamo experiment has failed.

Following the 9/11 attacks, the United States imprisoned hundreds without trial at Guantánamo and created a new military-commission system there to try terrorism suspects. The system lacked fundamental protections required for fair trials.

Those implicated in serious crimes should be prosecuted, but in a time-tested judicial system, not one built from scratch.

One of the first detainees charged in the new system —Salim Hamdan — challenged it all the way up to the Supreme Court, and won, forcing President George W. Bush to rewrite the system, this time with the help of Congress. Hamdan was then charged in the new system, and convicted in 2008 (I was co-counsel at his trial). But the new military trials were nearly as flawed as the old.

When President Obama took office, he and Congress revised the Military Commissions Act even further, but they remain fundamentally flawed, lacking independence and admitting inferior evidence like coerced testimony and hearsay. Last month, the federal appeals court in Washington overturned Hamdan’s conviction. The decision has serious implications for pending cases. It highlights the dangers of building a new legal system from scratch – you can get it wrong.

There has always been another option: federal courts. Hundreds of terrorism suspects have already been tried in federal court, including Ahmed Ghailani, who was transferred from Guantánamo and is now serving a life sentence for his involvement in the 1998 attacks on the U.S. embassies in East Africa. But bowing to political pressure, President Obama has repeatedly signed into law restrictions passed by Congress that bar the transfer of additional detainees to the U.S. for trial and make it difficult to repatriate some 90 detainees designated for release.

Those implicated in serious crimes should be prosecuted, but in time-tested judicial systems. If the president is serious about closing Guantánamo, he needs to work with Congress to lift the restrictions on transferring detainees. If Congress refuses, Obama should use his veto. Fair trials, and the release of those detainees who will not be tried, are the only way forward.

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By Andy Worthington

Since May 2009, when President Obama first bowed to Republican pressure on national security issues, and abandoned a plan by White House Counsel Greg Craig to rehouse on the US mainland a couple of cleared prisoners at Guantánamo who were at risk of torture if repatriated, it has been apparent that no principles are sufficiently important to the administration that officials won’t jettison them the moment that critics start howling.

After this first success with the cleared prisoners — blocking entry to the US for the Uighurs, Muslims from China’s Xinjiang province, who had been cleared for release by a US court — Republicans, and, to a lesser extent, dissenters within Obama’s own party, realized that the power to shape national security issues was in their hands, particularly when the magic word “Guantánamo” was invoked.

As a result, when a young Nigerian, apparently recruited in Yemen, tried to blow up a Detroit-bound plane on Christmas Day 2009, and the critics howled that no Yemenis in Guantánamo should be released, the President didn’t point out that this was unacceptable, and was, moreover, a call for him to endorse a policy of “guilt by nationality.” Instead, he immediately capitulated, imposing a moratorium on the release of Yemenis from Guantánamo that still stands 15 months later, and that, single-handedly, undermined the President’s own promise to close the prison.

 

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By Andy Worthington
The Public Record

Swearing in judges on the Court of Military Commission Review. John Rolph swears in Paul Holden, Dawn Scholz, Steven Walburn, Amy Bechtold, Steven Thompson, Lisa Schenck, and Eric Geiser. Photo/Wikimedia

Last Tuesday, a little known court — the Court of Military Commissions Review — convened to hear appeals in the cases of the only two men sentenced in the Military Commission trial system established by Congress in 2006, after the first version, conceived by Vice President Dick Cheney and his close advisors in November 2001, was ruled illegal by the US Supreme Court.

The two men in question — Salim Hamdan and Ali Hamza al-Bahlul — were tried and convicted in 2008, but whereas Hamdan, a driver for Osama bin Laden, had the major charge against him (conspiracy) dismissed by a military jury in August 2008, and was sentenced to serve just six months for providing material support to terrorism, al-Bahlul, who made a video promoting al-Qaeda and is regularly described as al-Qaeda’s “media secretary,” was convicted of conspiracy, solicitation of murder, and providing material support to terrorism, and received a life sentence in November 2008.

Under consideration are two specific questions: firstly, whether providing material support to terrorism is a valid basis for conviction in a war crimes court; and, secondly, whether al-Bahlul’s trial was unfair because he was denied the right to represent himself.

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Instead of focusing on Guantanamo closure, the US military is gearing up for the war-crimes trial of the youngest detainee at the infamous detention center.

The military is making efforts to ensure that Omar Khard, a Canadian held for allegedly killing a US soldier in Afghanistan, will stand trial at Guantanamo.

“The prosecutors in Khadr’s case have informed us that if the trial takes place in July 2010, it will be held at Guantanamo,” said Army Maj. Jon Jackson, one of the detainee’s Pentagon-appointed attorneys.

Only two days into Barack Obama’s presidency, he ordered the closure of the prison by January 22nd, 2010. However, the US president later on admitted that he would not be able to keep his word citing his failure to line up help and support from other countries and even his own political party as reasons.

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Group Reiterates Call For Commissions To End

NEW YORK – The American Civil Liberties Union will monitor the military commission hearings of Sudanese nationals Ibrahim al-Qosi and Noor Uthman Muhammed at Guantánamo Bay on Wednesday. Since 2004, the ACLU has observed nearly all military commission hearings and called for their end, calling them an affront to the rule of law and a denigration of the American system of justice. For the third time, the Obama administration will ask military judges in Wednesday’s cases to postpone the hearings until a final decision is made regarding the future of the military commissions system.

Al-Qosi, who was among the first prisoners to be brought to Guantánamo Bay in January 2002, is alleged to have provided material support to al-Qaeda, including serving as a driver and guard to Osama bin Laden. Muhammed was arrested in 2002 and is alleged to have trained al-Qaeda members at the Khaldan training camp in Afghanistan.

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WASHINGTON (Reuters) – Prisoners held at a U.S. base in Afghanistan will have their detention reviewed roughly every six months, officials said, part of efforts by the Pentagon to improve the image of its forces in the country.

The new policy will apply to some 600 Afghans held at a prison at the Bagram air base north of Kabul.

Pentagon spokesman Bryan Whitman said detainees would be assigned personal representatives drawn from U.S. military ranks on the base to “guide them through the review process” and help gather witness statements that could be used to challenge their imprisonment.

The prison has housed suspected Taliban members since U.S. and Afghan forces overthrew the militants’ government in 2001 after the September 11 attacks.

Two prisoners died at the prison in 2002 after being beaten by American soldiers, and human rights advocates say prisoners have been staging protests there for the past few months over the conditions of their detention.

Critics say the U.S. detention of prisoners at Bagram without access to courts, defence lawyers or family members was against Afghan and international laws.

Whitman said military-appointed detention review boards would give prisoners at the base “the opportunity to contest their detentions” as well as allow the U.S. military to assess “whether or not they warrant being held.”

“The concept is to have somebody … have their case reviewed within 60 days of being detained and to have it re-reviewed roughly every six months or so,” Whitman said.

The personal representatives assigned to the detainees would not be lawyers.

“This is not an adjudication of criminal charges,” Geoff Morrell, the Pentagon press secretary, said. “These are fighters picked up on the battlefield and detained.”

“But we found it is helpful to have some sort of review process so they have a better understanding about why they’re being held and an opportunity to provide witnesses or evidence” to make the case for their release, he added.

The new policy was first reported in the U.S. media over the weekend, but the Pentagon gave further details on Monday.

Whitman said the new review process was “consistent” with the counter-insurgency strategy put in place by the commander of U.S. and NATO forces in Afghanistan, General Stanley McChrystal, aimed at garnering public support from the Afghan public and undercutting gains by the Taliban.

“You don’t want to be holding people any longer than you need to be holding them and, occasionally, there are people who get caught up in the fight and want to contest their detention,” Whitman said.

The Pentagon did not say how soon the new policy would be carried out in full. “We’re just in the process of implementing this,” Whitman said.

He said the procedures were similar to those in Iraq, which he said had helped reduce the prison population and “ensure that we were only holding the most dangerous individuals.”

The shift has been welcomed by the Afghan Commission for Human Rights, which has been pushing for years for the detainees to have access to lawyers.

The U.S. government is building a new facility at Bagram to replace the existing makeshift prison. The new prison should be opened in the next few months.

(Reporting by Adam Entous; Editing by David Storey)

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by Lara Jakes/Associated Press
Brennan Linsley/Associated PressA U.S. trooper in uniform enters the Guantanamo detention facility at dawn, inside Guantanamo Bay U.S. Naval Base, Cuba. President Barack Obama says he is restarting U.S. military tribunals for the small number of terrorist suspects among all the detainees held at Guantanamo

WASHINGTON — In an apparent reversal, President Barack Obama is reviving the much-criticized military tribunals for Guantanamo Bay detainees and promising to make changes to the system that could jeopardize his timetable for closing the prison by January.

Obama said the changes were designed to give detainees stronger legal protections, such as a ban on evidence obtained under cruel duress. But his action was almost instantly denounced by a host of liberal-leaning groups who suggested he was going back on campaign promises.

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By Andy Worthington

At Guantánamo this week, the Military Commission trial system convened for only the second time since President Obama announced a four-month freeze on all proceedings on his first day in office to give the new administration’s inter-departmental Guantánamo Task Force an opportunity to review the best ways in which to deal with the remaining prisoners inherited from the Bush administration.

Reviving the Commissions, ill-advisedly

In May, in a major speech on national security, Barack Obama signaled that he was planning to revive the Commissions, arguing that, with some amendments, they would be “fair, legitimate, and effective,” and promising to “work with Congress and legal authorities across the political spectrum on legislation” that would fulfill these aims.

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By Andy Worthington

On Wednesday, I reported how Retired Rear Admiral John D. Hutson, the former Judge Advocate General of the US Navy from 1997 to 2000, had delivered compelling testimony to a Senate Armed Services Committee hearing on “legal issues regarding military commissions and the trial of detainees for violations of the law of war,” explaining why the only valid forum for trials of suspected terrorists at Guantánamo Bay is the U.S. federal court system.

The lucidity and directness of Hutson’s testimony was in marked contrast to the amendments to the existing Military Commission system — and terrifying asides about the use of “preventive detention” — that were proposed by Jeh Johnson, the Defense Department’s General Counsel, and David Kris, the Assistant Attorney General in the Justice Department’s National Security Division, in response to legislation already prepared by the Committee, which, it seems, will be presented to the Senate in the imminent future, even though it still allows (subject to certain restrictions) the use of information — I hesitate to use the word “evidence” — obtained through coercion, and other information that is nothing more than hearsay.

The day after Hutson delivered his testimony, the Constitution, Civil Rights, and Civil Liberties Subcommittee of the House Committee on the Judiciary held a hearing on “Legal Issues Surrounding the Military Commissions System,” in which Lt. Col. Darrel Vandeveld of the U.S. Reserves, a former prosecutor in the Military Commissions, delivered what should, I believe, be the final word on the unsuitability of Military Commissions as a valid trial system (PDF).

 

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