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November 18, 2013

Voices From the Drone Summit

Last weekend, I participated in a panel on the illegality of drones and targeted killing off the battlefield at the conference, “Drones Around the Globe: Proliferation and Resistance,” in Washington DC. Nearly 400 people from many countries came together to gather information, protest, and develop strategies to end targeted killing by combat drones. I found the most compelling presentations to be first-hand accounts by those victimized by U.S. drone attacks, and a former military intelligence analyst who helped choose targets for drone strikes.

Members of a delegation from Yemen provided examples of the devastation drones have wrought in their communities. Faisal bin Ali Jaber is an engineer. For some time, one of his relatives had been giving public lectures criticizing drone attacks. In August 2012, family and friends were celebrating the marriage of Jaber’s son. After the wedding, a drone struck Jaber’s relative, killing him instantly. Jaber lost a brother-in-law who was a known opponent of Al Qaeda, and a 21-year-old nephew in the attack.

Baraa Shaiban, a human rights activist who works with REPRIEVE, revealed that 2012 was a year that saw “drones like never before” in Yemen. He described the death of a mother and daughter from a drone strike. “The daughter was holding the mother so tight, they could not be separated. They had to be buried together.”

Two members of Al Qaeda were in Entesar al Qadhi’s village, one of the most oil rich areas of Yemen. Villagers were negotiating with the two men. A drone killed the chief negotiator, scuttling the negotiations and leaving the village vulnerable to Al Qaeda. “The drones are for Al Qaeda, not against Al Qaeda,” al Qadhi said.

Air Force Col. Morris Davis (ret.) is a professor at Howard University Law School. He was chief prosecutor at the Guantanamo military commissions until he was reassigned due to his disagreement with the government’s policies. Davis had been assigned to a chain of command below Defense Department General Counsel William Haynes, who favored the use of evidence gained through waterboarding. “The guy who said waterboarding is A-okay I was not going to take orders from. I quit,” Davis said at the time. At the Drone Summit, Davis related the case of Nek Muhammad, who, Davis noted, “was not a threat to us. He was killed as a favor to the Pakistani government so they would look the other way when we wanted to kill our targets.”

Daniel Hale helped choose targets for drone attacks. The former intelligence analyst with the Joint Special Operations Command in Afghanistan delivered a riveting talk. Hale utilized surveillance data for drone attacks. He would tell the sensor operator – who sits next to the “pilot” of the unmanned drone thousands of miles from the target – where to point the camera. This information would guide the “pilot” in dropping the bomb.

Every day, a slideshow of the most dramatic images from 9/11 and George W. Bush “looking somber” would be projected in the room in which Hale worked. On the wall in the main facility, there were television screens, each showing “a different bird [drone] in a different part of the country.” Every branch of the U.S. military and foreign militaries monitored “all of Afghanistan.” Hale would be assigned a mission “to go after a specific individual for nefarious activities.” He fed his intelligence to a sensor operator “so they would know where to look before a kinetic strike or detention” of an individual.

On one occasion, Hale located an individual who had been involved with Improvised Explosive Devices (IEDs). The man was riding a motorcycle in the mountains early in the morning. He met up with four other people around a campfire drinking tea. Hale relayed the information that led to a drone strike, which killed all five men. Hale had no idea whether the other four men had done anything. Hale had thought he was part of an operation protecting Afghanistan. But when the other four men died – a result of “guilt by association” – Hale realized he “was no longer part of something moral or sane or rational.” He had heard someone say that “terrorists are cowards” because they used IEDs. “What was different,” Hale asked, “between that and the little red joy stick that pushes a button thousands of miles away”?

August 28, 2013

Killing Civilians to Protect Civilians in Syria

By Marjorie Cohn and Jeanne Mirer

The drums of war are beating again. The Obama administration will reportedly launch a military strike to punish Syria’s Assad government for its alleged use of chemical weapons. A military attack would invariably kill civilians for the ostensible purpose of showing the Syrian government that killing civilians is wrong. “What we are talking about here is a potential response . . . to this specific violation of international norms,” declared White House press secretary Jay Carney. But a military intervention by the United States in Syria to punish the government would violate international law.

For the United States to threaten to and/or launch a military strike as a reprisal is a blatant violation of the United Nations Charter. The Charter requires countries to settle their international disputes peacefully. Article 2(4) makes it illegal for any country to either use force or threaten to use force against another country. Article 2(7) prohibits intervention in an internal or domestic dispute in another country. The only time military force is lawful under the Charter is when the Security Council approves it, or under Article 51, which allows a country to defend itself if attacked. “The use of chemical weapons within Syria is not an armed attack on the United States,” according to Notre Dame law professor Mary Ellen O’Connell.

The United States and the international community have failed to take constructive steps to promote peace-making efforts, which could have brought the crisis in Syria to an end. The big powers instead have waged a proxy war to give their “side” a stronger hand in future negotiations, evaluating the situation only in terms of geopolitical concerns. The result has been to once again demonstrate that military solutions to political and economic problems are no solution at all. In the meantime, the fans of enmity between religious factions have been inflamed to such a degree that the demonization of each by the other has created fertile ground for slaughter and excuses for not negotiating with anyone with “blood on their hands.”

Despite U.S. claims of “little doubt that Assad used these weapons,” there is significant doubt among the international community about which side employed chemical weapons. Many view the so-called rebels as trying to create a situation to provoke U.S. intervention against Assad. Indeed, in May, Carla del Ponte, former international prosecutor and current UN commissioner on Syria, concluded that opposition forces used sarin gas against civilians.

The use of any type of chemical weapon by any party would constitute a war crime. Chemical weapons that kill and maim people are illegal and their use violates the laws of war. The illegality of chemical and poisoned weapons was first established by the Hague regulations of 1899 and Hague Convention of 1907. It was reiterated in the Geneva Convention of 1925 and the Chemical Weapons Convention. The Rome Statute for the International Criminal Court specifically states that employing “poison or poisoned weapons” and “asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices” are war crimes, under Article 8. The prohibition on the use of these weapons is an international norm regardless of whether any convention has been ratified. As these weapons do not distinguish between military combatants and civilians, they violate the principle of distinction and the ban on weapons which cause unnecessary suffering and death contained in the Hague Convention. Under the Nuremberg Principles, violations of the laws of war are war crimes.

The self-righteousness of the United States about the alleged use of chemical weapons by Assad is hypocritical. The United States used napalm and employed massive amounts of chemical weapons in the form of Agent Orange in Vietnam, which continues to affect countless people over many generations. Recently declassified CIA documents reveal U.S. complicity in Saddam Hussein’s use of chemical weapons during the Iran-Iraq war, according to Foreign Policy: “In contrast to today’s wrenching debate over whether the United States should intervene to stop alleged chemical weapons attacks by the Syrian government, the United States applied a cold calculus three decades ago to Hussein’s widespread use of chemical weapons against his enemies and his own people. The Reagan administration decided that it was better to let the attacks continue if they might turn the tide of the war. And even if they were discovered, the CIA wagered that international outrage and condemnation would be muted.”

In Iraq and Afghanistan, the United States used cluster bombs, depleted uranium, and white phosphorous gas. Cluster bomb cannisters contain tiny bomblets, which can spread over a vast area. Unexploded cluster bombs are frequently picked up by children and explode, resulting in serious injury or death. Depleted uranium (DU) weapons spread high levels of radiation over vast areas of land. In Iraq, there has been a sharp increase in Leukemia and birth defects, probably due to DU. White phosphorous gas melts the skin and burns to the bone. The Geneva Convention Relative to the Protection of Civilian Persons in time of War (Geneva IV) classifies “willfully causing great suffering or serious injury to body or health” as a grave breach, which constitutes a war crime.

The use of chemical weapons, regardless of the purpose, is atrocious, no matter the feigned justification. A government’s use of such weapons against its own people is particularly reprehensible. Secretary of State John Kerry said that the purported attack by Assad’s forces “defies any code of morality” and should “shock the conscience of the world.” He went on to say that “there must be accountability for those who would use the world’s most heinous weapons against the world’s most vulnerable people.”

Yet the U.S. militarily occupied over 75% of the Puerto Rican island of Vieques for 60 years, during which time the Navy routinely practiced with, and used, Agent Orange, depleted uranium, napalm and other toxic chemicals and metals such as TNT and mercury. This occurred within a couple of miles of a civilian population that included thousands of U.S. citizens. The people of Vieques have lived under the colonial rule of the United States now for 115 years and suffer from terminal health conditions such as elevated rates of cancer, hypertension, respiratory and skin illnesses and kidney failure. While Secretary Kerry calls for accountability by the Assad government, the U.S. Navy has yet to admit, much less seek atonement, for decades of bombing and biochemical warfare on Vieques.

The U.S. government’s moral outrage at the use of these weapons falls flat as it refuses to take responsibility for its own violations.

President Barack Obama admitted, “If the U.S. goes in and attacks another country without a UN mandate and without clear evidence that can be presented, then there are questions in terms of whether international law supports it . . .” The Obama administration is studying the 1999 “NATO air war in Kosovo as a possible blueprint for acting without a mandate from the United Nations,” the New York Times reported. But NATO’s Kosovo bombing also violated the UN Charter as the Security Council never approved it, and it was not carried out in self-defense. The UN Charter does not permit the use of military force for “humanitarian interventions.” Humanitarian concerns do not constitute self-defense. In fact, humanitarian concerns should spur the international community to seek peace and end the suffering, not increase military attacks, which could endanger peace in the entire region.

Moreover, as Phyllis Bennis of the Institute for Policy Studies and David Wildman of Human Rights & Racial Justice for the Global Ministries of the United Methodist Church wrote, “Does anyone really believe that a military strike on an alleged chemical weapons factory would help the Syrian people, would save any lives, would help bring an end to this horrific civil war”?

Military strikes will likely result in the escalation of Syria’s civil war. “Let’s be clear,” Bennis and Wildman note. “Any U.S. military attack, cruise missiles or anything else, will not be to protect civilians – it will mean taking sides once again in a bloody, complicated civil war.” Anthony Cordesman, military analyst from the Center for Strategic and International Studies, asks, “Can you do damage with cruise missiles? Yes. Can you stop them from having chemical weapons capability? I would think the answer would be no.”

The United States and its allies must refrain from military intervention in Syria and take affirmative steps to promote a durable ceasefire and a political solution consistent with international law. If the U.S. government were truly interested in fomenting peace and promoting accountability, it should apologize to and compensate the victims of its own use of chemical weapons around the world.

Marjorie Cohn is a professor at Thomas Jefferson School of Law, former president of the National Lawyers Guild (NLG), and deputy secretary general of the International Association of Democratic Lawyers (IADL). New York attorney Jeanne Mirer is president of the IADL and co-chair of the NLG’s International Committee. Both Cohn and Mirer are on the board of the Vietnam Agent Orange Relief and Responsibility Campaign.

August 10, 2013

The Struggle Continues: Seeking Compensation for Vietnamese Agent Orange Victims, 52 Years On

By Marjorie Cohn and Jeanne Mirer

Today marks the 52nd anniversary of the start of the chemical warfare program in Vietnam, a long time with NO sufficient remedial action by the U.S. government. One of the most shameful legacies of the American War against Vietnam, Agent Orange continues to poison Vietnam and the people exposed to the chemicals, as well as their offspring.

For over 10 years, from 1961 to 1975, in order to deny food and protection to those deemed to be “the enemy,” the United States defoliated the land and forests of Vietnam with the chemicals known as Agent Orange. These chemicals contained the impurity of dioxin – the most toxic chemical known to science. Millions of people were exposed to Agent Orange and today it is estimated that three million Vietnamese still suffer the effects of these chemical defoliants.

In addition to the millions of Vietnamese who continue to be affected by this deadly poison, tens of thousands of U.S. soldiers are also affected. It has caused birth defects in hundreds of thousands of children in Vietnam and the United States – that is, the second and third generations of those who were exposed to Agent Orange decades ago. Medical evidence indicates that certain cancers (for example, soft tissue non-Hodgkin’s Lymphoma), diabetes (type II), and in children spina bifida and other serious birth defects, are attributable to the exposure.

The deadly mark left by Agent Orange on the natural environment of Vietnam includes the destruction of mangrove forests and the long-term poisoning of soil especially in the known “hot spots” near former U.S. military bases.

Surviving Vietnam veterans in the United States, after many years of organized action, have finally achieved limited compensation from our government for some illnesses they suffer due to Agent Orange poisoning. While this struggle continues, the three million surviving Vietnamese victims have received no such compensation or any humanitarian aid from the U.S. government. Nor have the children of the vast majority of U.S. veterans suffering from Agent Orange-related birth defects received any medical or other assistance.

The United States does not want to admit that its use of chemicals with poison as weapons of war on civilian populations violates the laws of war, which recognize the principle of distinction between military and civilian objects, requiring armies to avoid civilian targets. These laws of war are enshrined in the Hague Convention and the Nuremberg principles, and are codified in the Geneva Conventions of 1949 and the Optional Protocol of 1977, as well as the International Criminal Court statute.

The use of Agent Orange on civilian populations violates the laws of war; yet no one has been held to account. Taxpayers pick up the tab of the Agent Orange Compensation fund for U. S. Veterans at a cost of 1.52 billion dollars a year. The chemical companies, most specifically Dow and Monsanto, which profited from the manufacture of Agent Orange, paid a pittance to settle the veterans’ lawsuit to compensate them, as the unintended victims, for their Agent Orange-related illnesses. But the Vietnamese continue to suffer from these violations with almost no recognition, as do the offspring of Agent Orange-exposed U.S. veterans and Vietnamese-Americans.

Our government has a moral and legal obligation to compensate the people of Vietnam for the devastating impact of Agent Orange, and to assist in alleviating its effects. Indeed, the U.S. government recognized this responsibility in the Peace Accords signed in Paris in 1973, in which the Nixon administration promised to contribute $3 billion dollars toward healing the wounds of war, and to post-war reconstruction of Vietnam. But that promise remains unfulfilled.

For the past 52 years, the Vietnamese people have been attempting to address this legacy of war by trying to get the United States and the chemical companies to accept responsibility for this ongoing nightmare. An unsuccessful legal action by Vietnamese victims of Agent Orange against the chemical companies in U.S. federal court, begun in 2004, has nonetheless spawned a movement to hold the United States accountable for using such dangerous chemicals on civilian populations. The movement has resulted in pending legislation, H.R. 2519, The Victims of Agent Orange Relief Act of 2013, which provides medical, rehabilitative and social service compensation to the Vietnamese victims of Agent Orange, remediation of dioxin-contaminated “hot spots,” and medical services for the children of U. S. Vietnam veterans and Vietnamese-Americans who have been born with the same diseases and deformities.

Last year on the 51st anniversary of the beginning of the U.S. chemical war on Vietnam, we requested people around the world to observe 51 seconds of silence in memory of those who suffered and suffer from the effects of Agent Orange, and after the silence to take at least 51 seconds of action to support the struggle. This year again we urge you to reflect on the ongoing tragedy and take action by ensuring that your Congressional representative co-sponsors H.R. 2519, introduced by Rep. Barbara Lee.

Marjorie Cohn is a professor at Thomas Jefferson School of Law and former president of the National Lawyers Guild. Jeanne Mirer, a New York attorney, is president of the International Association of Democratic Lawyers. They are both on the board of the Vietnam Agent Orange Relief and Responsibility Campaign.

August 7, 2013

Chelsea Manning’s Revelations Saved Lives

This is a historic verdict. Judge Denise Lind correctly found Chelsea Manning not guilty of aiding the enemy because the evidence failed to establish that Manning knew information she provided to WikiLeaks would reach al-Qaida. A conviction of aiding the enemy would have sent a chilling message to the news media that if they publish leaked classified information, their officers could face life in prison. That would deprive the public of crucial information.

The verdict finding Manning guilty of Espionage Act offenses, however, sends an ominous warning that could deter future whistle-blowers from exposing government wrongdoing. It’s important to keep in mind that Manning provided information indicating the U.S. had committed war crimes. Traditionally the Espionage Act has been used only against spies and traitors, not whistle-blowers. Yet President Obama has used the Espionage Act to prosecute more whistle-blowers than all prior administrations combined.

Manning’s revelations actually saved lives. After WikiLeaks published his documentation of Iraqi torture centers established by the United States, the Iraqi government refused Obama’s request to extend immunity to U.S. soldiers who commit criminal and civil offenses there. As a result, Obama had to withdraw U.S. troops from Iraq.

The American public needed to know the information Manning provided. She revealed evidence of war crimes in the “Collateral Murder” video, which depicts a U.S. Apache attack helicopter crew killing 12 unarmed civilians and wounding two children in Baghdad in 2007. The crew then killed people attempting to rescue the wounded. A U.S. tank drove over one of the bodies, cutting it in half. Those actions constitute war crimes under the Geneva Conventions.

The Bush administration waged an illegal war in Iraq in which thousands of people were killed. It also established an interrogation program that led to the torture and abuse of people in Iraq, Afghanistan, Guantanamo and the CIA black sites. Yet it is Bradley Manning, not the Bush officials, who is being prosecuted.

Judge Lind has already reduced any sentence Manning may receive by 112 days because of her mistreatment during the first 11 months of his custody, when she was kept in solitary confinement and humiliated by being forced to stand naked for inspection. Hopefully the judge will take into account how Manning’s revelations benefit our society when she passes sentence. Manning is still facing 90 years in prison for his convictions on 19 of the 21 counts with which she was charged.

This first appeared on Debate Club, US News & World Report

July 19, 2013

Key Mistakes Sway Jury in Zimmerman Trial

A Southern jury of six women – none of them black – found 28-year-old George Zimmerman’s shooting of unarmed 17-year-old Trayvon Martin to be justifiable homicide because he acted in self-defense.

The jurors were prohibited from considering race. They were instructed only on the parts of self-defense law that helped Zimmerman, and the chief police investigator improperly testified that he believed Zimmerman.

Jury prevented from considering race

None of the jurors thought race played a role in the case, Juror B-37 told CNN’s Anderson Cooper. In fact the question of Zimmerman profiling Martin because he was African-American didn’t even come up in deliberations, the juror said.

No wonder it never came up. At the beginning of the trial, the judge forbade the prosecution from speaking about racial profiling. Only the word “profiling” could be used, Judge Debra S. Nelson ruled. “Criminal profiling is based on behavior,” NAACP President Benjamin Jealous said on Democracy Now! “Racial profiling is based on color and on race. And the reality is that it appears that George Zimmerman had a pattern of confusing color with grounds for suspicion.”

The entire trial from start to finish was sanitized of any mention of race.

Zimmerman told the 911 operator, “These fucking punks” and “these assholes, they always get away,” when he spotted Martin walking down the street in Sanford, Florida, that fateful evening. “Looks like he’s up to no good or he’s on drugs or something,” Zimmerman said. “Something’s wrong with him.” When an investigator later asked Zimmerman what he meant by those words, the shooter replied, “I don’t know.”

But the prosecutor was forbidden from telling the jury that the “something” that was “wrong” may have been the color of Martin’s skin. The Rev. Dr. Raphael G. Warnock, senior pastor at the Rev. Dr. Martin Luther King Jr.’s Ebenezer Baptist Church in Atlanta, told the New York Times, “Trayvon Benjamin Martin is dead because he and other black boys and men like him are seen not as a person but a problem.”

Howard Simon, executive director of the ACLU of Florida, noted, “George Zimmerman saw a young black male as a threat to his community.”

Clifford Alexander, who worked as a lawyer in the Lyndon Johnson White House, said in an interview with the Washington Post, “The clear reason why Zimmerman had the audacity to approach this child was that he saw the color of his skin as a threat.”

Two days after the shooting, Zimmerman’s cousin, known as Witness No. 9, told a Sanford police officer in a telephone call, “I know George. And I know that he does not like black people.” She added, “He would start something. He’s a very confrontational person. It’s in his blood. Let’s just say that. I don’t want this poor kid and his family to just be overlooked.”

But the judge sanitized the case and everyone involved was forced to ignore the elephant in the room. Indeed, after the verdict, Mark O’Mara, Zimmerman’s defense attorney, made the preposterous statement that if his client were black, “he never would’ve been charged with a crime.”

Jury prevented from considering first aggressor

Florida’s self-defense law prohibits “initial aggressors” from using force if their own conduct has provoked that force. So if a defendant “initially provokes the use of force” against himself, he cannot claim to have acted in self-defense, unless he withdraws or retreats.

The prosecution asked the judge to instruct the jury that it could consider who was the first aggressor in the altercation between Zimmerman and Martin. If the judge had agreed to give that instruction, the jury might have concluded that, by following Martin, Zimmerman provoked a physical response from Martin. The defense objected to the instruction, and the judge decided not to give the first aggressor instruction.

The jury was instructed to consider only whether Zimmerman reasonably believed deadly force was necessary to prevent imminent death or great bodily harm to himself – when he later tussled with Martin on the ground. The jury was also told Zimmerman had no duty to retreat, that he could stand his ground, and meet force with force- including deadly force – if he was not engaged in an unlawful activity and was attacked in a place he had a right to be. Finally, the judge instructed the jury that if it had a reasonable doubt about whether Zimmerman was justified in using deadly force, they should find him not guilty.

The instructions prevented the jury from considering whether Zimmerman was the first aggressor when he got out of his truck and began following Martin. When Zimmerman told the 911 operator, “Shit, he’s running,” the operator asked, “Are you following him?” Zimmerman said that he was. “OK, we don’t need you to do that,” the operator told Zimmerman. But Zimmerman followed Martin nevertheless. Rachel Jeantel testified that Martin told her on the cellphone he was being followed by a “creepy ass cracker.”

The jury was only given partial instructions on self-defense – those parts that helped Zimmerman. They were prevented from considering whether Zimmerman might have been the first aggressor, which would have negated his claim of self-defense.

Ultimately, nothing mattered to the jury, Juror B-37 told Cooper, except whether Zimmerman feared for his life in the seconds before he shot Martin.

Juror B-37 said that Zimmerman was guilty of nothing more than “not using good judgment.” She added, “Both were responsible for the situation they had gotten themselves into.”

Officer permitted to make credibility judgment

Sanford police officer Chris Serino, the chief investigator on the case, testified that, given all the evidence, he believed Zimmerman was telling the truth. It is well-established that witnesses cannot make credibility judgments – it invades the jury’s exclusive province of determining the credibility and weight of any evidence. But the prosecution didn’t object to Serino’s testimony until the next morning, at which point the judge told the jury to disregard it. Yet the damage was done, and Serino again testified that there were no significant inconsistencies in Zimmerman’s statements to police.

From the beginning, Serino did not believe there was enough evidence to file criminal charges against Zimmerman. The officer told the FBI that he was pressured into making the arrest. Zimmerman finally was charged for Martin’s death only after a powerful national outcry, and the governor’s appointment of a special prosecutor – 40 days following the killing.

Serino testified, “In this case, [Zimmerman] could have been considered the victim also.” Likewise, Juror B-37 felt sorry for both of them – the dead boy and the shooter alike.

This article first appeared on Truthout.

July 5, 2013

Five “High-Value” Guantanamo Detainees Improperly Presumed Guilty

It is a bedrock principle of our system of justice that everyone who is charged with a crime is presumed innocent unless and until proven guilty. That includes “high-value detainees” awaiting trial in Guantánamo’s military commissions. Yet pre-trial hearings held June 17-21 in the cases of five men charged with planning the 9/11 attacks revealed a clear presumption of guilt on the part of the government. Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarak bin ‘Attash, Ramzi bin al Shaibah, Ammar al Baluch, and Mustafa Ahmed Adam al Hawsawi have been charged with crimes for which they could be sentenced to death. Regardless of the emotions surrounding the terrorist attacks, these defendants must be treated fairly, in accordance with the law.

The issues litigated in the hearings included undue influence exerted on the military commission by political leaders, defects in the charging process, government violation of the attorney-client privilege, the right of the accused to exculpatory evidence in the hands of the International Committee of the Red Cross, and the exclusion of the accused from some pre-trial hearings. Judge James Pohl, who presides over these cases, took the motions under advisement. That means he postponed ruling on them until later. Although one defendant filed a motion to prevent the government from force-feeding him, that motion was not heard.

Undue influence in the charging process

Defense attorneys argued that high government officials exerted undue influence on the charging of their clients. The Military Commissions Act (MCA) expressly prohibits “any person” from unlawfully influencing or coercing the action of a military commission. Yet top US officials proclaimed the guilt of some of the defendants before they were charged and their cases set for trial in the military commissions. President George W. Bush made more than 30 public statements directly implicating Khalid Shaikh Mohammad in the 9/11 attacks; some of Bush’s statements also named Ramzi bin al Shaibah and Mustafa Ahmed Adam al Hawsawi. Secretary of State Donald Rumsfeld and White House Press Secretary Ari Fleischer made similar statements. President Barack Obama, Vice President Joe Biden, and Attorney General Eric Holder referred to the defendants as “terrorists.” Holder named all five defendants as “9/11 conspirators.” Obama and White House Press Secretary Robert Gibbs specifically referred to Mohammad, as did Sens. John McCain (R-Arizona) and Lindsey Graham (R-South Carolina). The guilt of the defendants, all of whom face the death penalty, was pre-determined.

Defects in the charging process

Mohammed al Qahtani was charged in 2008 along with the five defendants in the present case. But Susan Crawford, the former Convening Authority (CA) – who decides whether and what to charge against defendants in military commissions – determined that al Qahtani’s case should not be referred for prosecution. The CA found that “[w]e tortured [Mohammed al] Qahtani … His treatment met the legal definition of torture. And that’s why I did not refer the case” for prosecution.

Torture of the present defendants may well have affected the decision to charge them as well, and particularly, whether to seek the death penalty (capital charges). CA Adm. Bruce MacDonald testified that a capital referral was not a foregone conclusion. But defense counsel were prevented from effectively developing that information.

The Sixth Amendment to the Constitution assures the right to effective assistance of counsel when the government is considering whether to pursue the death penalty. Yet the period preceding the formal charging of these defendants was replete with insurmountable obstacles to “learned counsel,” making their assignment meaningless. Under the MCA, defendants have the right to learned counsel, who are learned in applicable law relating to capital cases, to ensure defendants are effectively represented. But several roadblocks to their representation rendered their assignment mere window-dressing.

Learned counsel were denied timely security clearances, so they were unable to meet with their clients or read 1,500 pages of classified documents. The denial of access to the clients damaged the attorney-client relationship and prevented the defense from building rapport, which is essential in eliciting from the accused facts and circumstances that could lessen his culpability or establish actual innocence.

Because professionals known as “mitigation specialists” were also denied security clearances, they, too, could not meet with the accused to assist in the gathering of information the defense could submit to prevent their clients from being charged with the death penalty. According to American Bar Association Guidelines, a mitigation specialist is considered: “an indispensable member of the defense team throughout all capital proceedings. Mitigation specialists possess clinical and information-gathering skills and training that most lawyers simply do not have.”

Furthermore, the accused were denied qualified and security-cleared translators, and one defendant had no case investigator until weeks before the charges were referred to the commission. Finally, there was a total obstruction of privileged attorney-client communications.

Thus, counsel were stymied in their efforts to effectively communicate with their clients about their detention, interrogation and torture by the US government, life history, current and past mental statuses, current location of their family, and the whereabouts of any educational, medical, or other records.

Government violation of the attorney-client privilege and interference with the right to counsel

The attorney-client privilege is the oldest privilege for confidential communications in the common law. Yet defense attorneys are prevented from bringing written work product to client meetings without revealing the contents to the government, unless they are signed or written by the defense team. Counsel are forced to rely on their memories to discuss complex legal issues.

Because of the government’s ongoing interference with the attorney-client privilege, bin ‘Attash had not received written privileged communication from his defense counsel from October 2011 until May 2012, when counsel filed a motion barring invasion of attorney-client communications. This caused “profound damage to the relationship between Mr. bin ‘Attash and his counsel.”

In addition, prison authorities established a “privilege team” to screen items prisoners could have in their cells to prevent their possession of “informational contraband”(which is given such a broad definition it could include media reports on efforts to close Guantánamo). But the review team includes intelligence agents, and they need not keep the information confidential.

Lawyers are forbidden from talking about “historical perspectives or [having] discussions of jihadist activities” or “information about current or former detention personnel” with their clients. Thus, Mohammad’s lawyer cannot ask his client why he may have plotted against the United States or who might have tortured him in the CIA black sites. Al Baluchi’s attorney is precluded from comparing his client’s alleged role in the offense with conspirators in other acts of terrorism who have and have not faced the death penalty. This is a serious interference with the defendant’s ability to present a defense.

Judge Pohl will likely issue new rules regarding attorney-client communications as early as this month.

Defense right to material in possession of International Committee of the Red Cross (ICRC)

The ICRC is an independent, neutral and impartial humanitarian organization. The Geneva Conventions contain a mandate for the ICRC to provide protection and assistance to victims of armed conflict and other situations of violence. ICRC’s confidential information must be kept confidential. All recipients of ICRC reports, including US authorities, are obligated to protect and abide by ICRC’s confidentiality. They are precluded from disclosing any confidential information in judicial or other legal proceedings.

Since 2002, the ICRC has visited detainees at Guantánamo. The ICRC engages in a confidential dialogue with the government about the conditions of confinement at Guantánamo. It also engages in confidential private interviews with detainees. The ICRC maintains its access, and its status of neutrality, because it guarantees confidentiality. But the ICRC can decide to turn over some of its material at its discretion.

The defense made a motion to compel the government to produce all correspondence between the ICRC and the Department of Defense regarding the conditions of confinement of the accused, including all ICRC reports, records and memoranda.

The prosecution argued “somewhat presumptuously” (in the ICRC’s words) that it should be able to review all confidential ICRC material to determine what should be provided to the defense.

There is a tension between the ICRC’s insistence on confidentiality, the government’s security concerns and the defendants’ right to exculpatory evidence under the Due Process Clause. The Supreme Court ruled in Brady v. Maryland that prosecutors must disclose materially exculpatory evidence in the government’s possession to the defense. That includes any evidence that goes toward negating a defendant’s guilt, that would reduce a defendant’s potential sentence, or evidence bearing on the credibility of a witness. Moreover, defense counsel argued that since this is a death case, there should be more favorable procedures for the defense. The prospect of an execution, without full disclosure of mitigating evidence, would shock a foreign government as much, if not more than, the provision of ICRC materials.

Exclusion of accused during closed pretrial hearings

Defense counsel objected to the exclusion of their clients during closed pretrial proceedings. The prosecution maintained that defendants must be excluded from hearings in which classified material is discussed. The MCA guarantees the right of the accused to be present at all hearings unless he is disruptive or during deliberations. The defense argued that defendants should be allowed to attend hearings in which classified information is discussed, if the information came from the accused himself. For example, Mohammad’s attorney wants his client to be present when they discuss his torture. The government waterboarded Mohammad 183 times at the CIA black site. Hearings were held from which the accused were excluded.

Motion to prevent force-feeding

Learned counsel for Hawsawi filed a motion to prevent the government from force-feeding his client, or in the alternative, to be notified in advance and given an opportunity to be heard before any force-feeding is employed. Hawsawi has been participating in the hunger strike at Guantánamo, but has not yet been force-fed. His counsel argued that “Mr. Hawsawi has been peacefully protesting by refusing food, on and off, for months now. Given his slender build and already relatively low body weight, it is entirely plausible that forced feeding is imminent.” This motion was not argued at the hearings because the judge found it premature, as Hawsawi is not being force-fed yet.

Of the 166 detainees remaining at Guantánamo, 104 are participating in the hunger strike, and 44 are being force-fed. The written procedures refer to force-feeding as “re-feeding.” Although they contain a few redactions (material blacked out), the pages that describe the procedure for “re-feeding” are totally redacted.

In 2006, the United Nations Human Rights Commission concluded that the violent force-feeding of detainees at Guantánamo amounted to torture. The Obama administration is also violently force-feeding detainees. The Constitution Project’s Task Force on Detainee Treatment found that “improper coercive involuntary feedings” were being undertaken with “physically forced nasogastric tube feedings of detainees who were completely restrained.” Boston University Professor George Annas, who co-authored a recent article in The New England Journal of Medicine, characterized the method of force-feeding being used on Democracy NOW!, as a “very violent type of force-feeding.” The American Medical Association and the World Medical Association have declared that force-feeding should not be used on a prisoner who is competent to refuse food.

On May 1, 2013, the Office of the United Nations High Commissioner on Human Rights wrote to the US government:

[I]t is unjustifiable to engage in forced feeding of individuals contrary to their informed and voluntary refusal of such a measure. Moreover, hunger strikers should be protected from all forms of coercion, even more so when this is done through force and in some cases through physical violence. Health care personnel may not apply undue pressure of any sort on individuals who have opted for the extreme recourse of a hunger strike. Nor is it acceptable to use threats of forced feeding or other types of physical or psychological coercion against individuals who have voluntarily decided to go on a hunger strike.

Four detainees filed a motion in a Washington DC federal court on June 30 to stop them from being force-fed and force-medicated with Reglan, a drug that can cause severe neurological disorders. Reprieve brought the motion on behalf of Shaker Aamer, Nabil Hadjarab, Ahmed Belbacha and Abu Wa’el Dhiab, all of whom have been cleared for release from Guantanamo.

Looking ahead

Trials in these cases will not begin before 2015. President Obama should halt all military commission proceedings and announce that the trials will be held in federal civilian courts, which have shown they are more than capable of prosecuting terrorism cases. As demonstrated in both this piece and the one I wrote about al Nashiri’s pretrial hearings, justice is impossible to achieve in military commissions, where guilt is a foregone conclusion.

This first appeared on Truthout.

July 1, 2013

Snowden’s Case for Asylum: An Interview With Marjorie Cohn

Despite U.S. government pressure, Russian President Vladimir Putin is balking at demands that he extradite Edward Snowden from Moscow to face espionage charges for leaking secrets about America’s global surveillance operations. Still, Snowden’s status remains dicey, as Marjorie Cohn explains to Dennis J Bernstein.

By Dennis J Bernstein

The U.S. government is putting on a full-court press to track down, arrest and prosecute Edward Snowden for blowing the whistle on the National Security Agency’s massive collection of data on phone calls by Americans and Internet use by foreigners.

U.S. Secretary of State John Kerry urged Russia to “do the right thing,” block Snowden from leaving Moscow, and instead turn him over to the United States for prosecution. Talking to reporters in New Delhi, India, Kerry said, “We think it is very important in terms of our relationship. We think it is very important in terms of rule of law. There are important standards.” Russian President Vladimir Putin.

But Marjorie Cohn, professor at Thomas Jefferson School of Law, said there is another rule of law, international law, that may give the 30-year-old systems analyst a path to political asylum. Cohn said Snowden could cite “a well-founded fear of persecution” based on the mistreatment of fellow whistleblower Bradley Manning. Professor Cohn spoke about the Snowden case to Dennis J Bernstein on Monday on the Flashpoints show on Pacifica Radio:

DB: Why don’t you begin with an overview of the case, and how you see it.

MC: Edward Snowden revealed a secret program of massive spying on Americans and people all around the world and turned them [documents] over to the Guardian and Washington Post. Then he went to Hong Kong, which is where he was until he left [on Sunday]. The U.S. government is going to charge him under the Espionage Act with crimes that could garner him 30 years, or even life in prison if they decide to add extra charges.

The Obama administration has gone after whistleblowers in an unprecedented manner, filing charges against eight people under the Espionage Act, more than twice all prior presidents combined. Most recently, the firestorm around Mr. Snowden is about whether he will be extradited back to the U.S. to stand trial on these charges. He was in Hong Kong, left and stopped in Moscow. There have been reports that he might go to Ecuador where he applied for political asylum and he did confer with officials from the Ecuadoran government when he was in Russia.

He could be extradited, sent back to the U.S. for trial, either by Russia or any country he passes through on the way to Ecuador. Or Ecuador could extradite him back to the U.S. Russia and the U.S. do not have an extradition treaty, but the U.S. has extradited seven Russian prisoners in the last two years. A country can refuse extradition when the offense is political in nature. He would be charged under the Espionage Act and espionage is a classic political act that gives rise to a refusal of extradition, so they could refuse extradition on those grounds.

There’s also a provision in the Convention against Torture called “non-refoulement” that forbids extradition of a person to a country where there are substantial grounds to believe he would be in danger of being tortured. Since Bradley Manning, another prominent whistleblower, was tortured by being held in solitary confinement for nine months, a country could conclude Edward Snowden might be subjected to the same fate, and deny extradition on that ground.

Also a country has an obligation to refuse extradition when it would violate fundamental rights. The right to be free from torture and cruel treatment is a fundamental right. Under the refugee convention, Ecuador or Iceland, where he’s applied for asylum as well, or any country, could grant Snowden political asylum if he can show he has a well-founded fear of being persecuted for reasons of political opinion in the U.S. He probably could make that showing in one of those countries. At this point it’s very fluid.

The Johannesburg Principles of national security, freedom of expression and access to information, which were issued in 1996 provide, “No person may be punished on national security grounds for disclosure of information if the public interest in knowing the information outweighs the harm from the disclosure.” It’s important to be talking about that. What did Edward Snowden do? Did he harm the national security?

There have been claims that terrorist attacks were thwarted by the massive dragnet surveillance Snowden exposed, but Senators [Mark] Udall and [Ron] Wyden, who have been on the Senate Select Committee on Intelligence and looking at this classified information for years, say that’s not true. The intelligence that is the most useful for foiling these plots is traditional intelligence and not a dragnet surveillance where they listen in to people’s phone calls and track what kinds of places they visit on the internet.

Even if they are not listening in on the content of the phone calls or reading the content of the messages, the fact that they are profiling, coming up with so-called patterns based upon the websites people visit or the people they call could be a tremendous invasion of privacy and lead to a lot of false intelligence.

DB: The scuttlebutt in the press today talks about how Snowden’s lack of character is reflected by his choice of going to one of the U.S. enemies, Ecuador, Cuba or Russia.

MC: Quite frankly, if the U.S. didn’t have such an antagonistic and ill-advised policy against countries like Venezuela and Cuba, even Ecuador, then these countries would probably be extraditing him back to the United States. But when the United States pursues the kinds of policies it does in Latin America, it alienates progressive governments, like Ecuador, which has a democratic, not tyrannical government.

Let’s keep in mind that In the 70s and 80s, the U.S. was supporting all the tyrannical countries in Latin America that were kidnapping, disappearing, torturing and murdering people. But it’s hard to blame these governments for not being willing to jump to whatever the U.S. says. According to Michael Ratner, a lawyer for Julian Assange, the Obama administration is bullying countries all over the world so they can get Ed Snowden rendered to the U.S. where he can be prosecuted.

Certainly the U.S. government is known for its bullying. It has bullied countries that signed the Rome Statute for the International Criminal Court [ICC] – bullied them into not turning Americans over to the court if Americans are found in those countries. The Bush administration certainly bullied countries about the ICC. Even the Obama administration has, if not by bullying, influenced Spain to drop charges under universal jurisdiction against the six Bush torture lawyers. That could be a form of bullying.

The U.S. has been notorious for bullying countries, especially smaller countries, for years – they are blackmailed into believing they will lose foreign assistance from the U.S. if they don’t do what the U.S. wants. When Americans are asked in the polls about what Edward Snowden did, and they think about it personally – do we want the government monitoring our personal communications – they are very much against these massive spying programs and not so critical of Edward Snowden.

It’s important that the independent media bring what is happening to the people so they are not just left with sound bites from the corporate media that will paint Snowden as a traitor because he violated national security that keeps us safe from terrorist attacks. We heard that all through the Bush administration and it certainly didn’t make us any safer than we would have been otherwise. It probably makes us less safe since there’s so much hatred for the U.S. since we invaded and killed so many people in Iraq and Afghanistan. The extensive torture, Guantanamo, the drone strikes, which have been stepped up during the Obama administration, have all created much more hatred against the United States.

DB: Is there any precedent, any case you could make that this man acted for the greater good of society?

MC: A precedent is Dan Ellsberg who leaked the Pentagon Papers, which revealed what was going on in the Vietnam War and helped ultimately end that war. You could say that was for the greater good. Also, Bradley Manning leaked evidence of war crimes, the collateral murder video, among other things, which showed commission of war crimes as defined by the Geneva Conventions, by people in the U.S. Army. Yes, there is precedent for this.

DB: Do you think the U.S. is going to figure out a way to get him? Would they be breaking international law if they sent a pick-up team to get him, wherever he was?

MC: Yes, they would. He needs very tight security wherever he is because it’s not beyond belief to think some thugs could kidnap him and render him to the U.S.

DB: Is there any legal justification for the U.S. to do that?

MC: No, but somebody could do it and say they weren’t working for the government. The government could say he’s a traitor and we need to bring him to justice in our country and he is being shielded.

DB: So he can be kidnapped and left somewhere the U.S. could get him? The U.S. could say, “We didn’t get him. We found him here.”

MC: That’s possible.

Dennis J Bernstein is a host of “Flashpoints” on the Pacifica radio network and the author of Special Ed: Voices from a Hidden Classroom. You can access the audio archives at www.flashpoints.net.

June 19, 2013

Former CIA Employee, Snowden, Blows Whistle on NSA’s Dragnet Surveillance

Just as Bradley Manning’s court-martial was getting underway, another brave whistleblower dropped a bombshell into the media: The Obama administration is collecting data on every telephone call we make. Nearly 64 years to the day after George Orwell published his prescient book 1984, we have learned that the “Thought Police” are indeed watching every one of us. “They quite literally can watch your ideas form as you type,” Edward Snowden told the Washington Post.

A former undercover CIA employee who has worked at the National Security Agency (NSA) for four years, Snowden provided a secret order of the Foreign Intelligence Surveillance Court to the Guardian. The order requires Verizon on an “ongoing daily basis” to provide the NSA information about all phone calls in its system both in the United States and other countries. Glenn Greenwald wrote that it “shows for the first time that under the Obama administration the communication records of millions of U.S. citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing.” That secret order is scheduled for declassification on April 12, 2038.

The order, issued under Section 215 of the Patriot Act, mandates that Verizon provide daily phone records for all “communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.” The government is collecting “metadata” on our phone communications. That is, the identities of the sender and recipient, and the date, time, duration, place, and unique identifiers of the communication. Administration officials defending the program claim they are not reading the content of our calls.

But, as ACLU’s Ben Wizner and Jay Stanley note, “Even without intercepting the content of communications, the government can use metadata to learn our most intimate secrets – anything from whether we have a drinking problem to whether we’re gay or straight … The ‘who,’ ‘when’ and ‘how frequently’ of communications are often more revealing than what is said or written.” For example, “Repeated calls to Alcoholics Anonymous, hotlines for gay teens, abortion clinics or a gambling bookie may tell you all you need to know about a person’s problem.” And, they add, “URLs often contain content – such as search terms embedded within them,” so that “the very fact that we’ve visited a page with a URL such as ‘www.webmd.com/depression’ can be every bit as revealing as the content of an email message.”

“Under the Bush administration, officials in security agencies had disclosed to reporters the large-scale collection of call records data by the NSA,” Greenwald wrote, “but this is the first time significant and top-secret documents have revealed the continuation of the practice on a massive scale under President Obama.” He added, “The unlimited nature of the records being handed over to the NSA is extremely unusual. FISA court orders typically direct the production of records pertaining to a specific named target who is suspected of being an agent of a terrorist group or foreign state, or a finite set of individually named targets.”

Ron Wyden and Mark Udall, members of the Senate select committee on intelligence, have been reviewing secret intelligence collections operations for a long time. “We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted Section 215 of the Patriot Act,” they wrote in a letter to Attorney General Eric Holder last year.

“After years of review,” Wyden and Udall wrote after Snowden’s revelations, “we believe statements that this very broad Patriot Act collection has been ‘a critical tool in protecting the nation’ do not appear to hold up under close scrutiny. We remain unconvinced that the secret Patriot Act collection has actually provided any uniquely valuable intelligence.” They added, “As far as we can see, all of the useful information that it has provided appears to have also been available through other collection methods that do not violate the privacy of law-abiding Americans in the way that the Patriot Act collection does.”

According to Wyden and Udall, “When Americans call their friends and family, whom they call, when they call, and where they call from is private information. We believe the large-scale collection of this information by the government has a very significant impact on Americans’ privacy, whether senior government officials recognize that fact or not.”

In addition, Greenwald, and the Washington Post, reported on the existence of PRISM, the NSA’s Internet surveillance system that collects data from Google, Yahoo, Microsoft, Facebook, PalTalk, AOL, Skype, YouTube and Apple. Established pursuant to Section 702 of the Foreign Intelligence Surveillance Act (FISA) and the 2008 FISA Amendments Act, PRISM allows national security officials to collect material including search history, the content of emails, file transfers and live chats, if targeted at foreigners “reasonably believed” to be abroad, even if the surveillance takes place on US soil. The law forbids intentionally targeting data collection at American citizens or anyone in the United States. But, according to Greenwald, “The law allows for the targeting of any customers of participating firms who live outside the US, or those Americans whose communications include people outside the US.”

According to materials obtained by the Post, “NSA reporting increasingly relies on PRISM” as its primary source of raw material, and accounts for one in seven intelligence reports.

After the surveillance became public, a senior intelligence official who spoke anonymously to the New York Times claimed that PRISM thwarted a 2009 plot by Najibullah Zazi to bomb the New York City subway system. But public legal documents reveal that “old-fashioned police work, not data mining, was the tool that led counterterrorism agents to arrest Zazi,” according to Ben Smith at BuzzFeed.

Snowden revealed the secret information because, he said, “What they’re doing” poses “an existential threat to democracy.” He leaked the documents at great risk to himself. “I’m willing to sacrifice [his home and family] because I can’t in good conscience allow the US government to destroy privacy, internet freedom and basic liberties for people around the world with this massive surveillance machine they’re secretly building.”

Snowden said, “Everyone, everywhere now understands how bad things have gotten – and they’re talking about it. They have the power to decide for themselves whether they are willing to sacrifice their privacy to the surveillance state.”

The contrast between liberty and security is not a new one. Benjamin Franklin warned, “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor security.” Throughout our history, we have grappled with this apparent tension. Unfortunately, all too often, we have lost our liberties – with no tangible benefit.

Senator Dianne Feinstein, chairwoman of the Senate Intelligence Committee, defended the massive intelligence-gathering program, while admitting she did not know how the collected data was being used. The New York Times called her defense “absurd.” Greenwald tweeted, “The reason there are leakers is precisely because the govt is filled with people like Dianne Feinstein who do horrendous things in secret.”

When Obama ran for president in 2008, he promised change – change from the policies of the Bush administration. The only change he has made in the Bush surveillance policy is to increase it to dragnet-like proportions.

Both Congress – by dutifully rubber-stamping the executive’s requests for almost unlimited snooping powers – and the courts – by affirming those policies – have acquiesced in the unprecedented surveillance of us all. It thus remains for We the People to pressure the government to heed Benjamin Franklin’s chilling admonition. As Snowden said, “It’s important to send a message to government that people will not be intimidated.” If we don’t, we will live in nothing less than a police state.

This first appeared on Truthout.

Guantanamo Prisoner Al-Nashiri’s Case Demonstrates Unfairness of Military Commissions

The issue of terrorism has been front and center in the national discourse since 9/11. Guantánamo has become a symbol of US hypocrisy on human rights.

Lawyers handling the criminal case of Guantánamo prisoner Abd al-Rahim al-Nashiri argued several pre-trial motions last week. But just as they raised some fascinating legal issues, the hearings revealed the basic unfairness of the military commissions for adjudicating criminal cases. People can be put to death after a trial that affords a reduced level of due process.

Defense motions raised issues of whether the Sixth Amendment’s Confrontation Clause applies in military commissions; whether a military commission can legally try defendants for the crimes of conspiracy and terrorism; whether the government has been eavesdropping on confidential attorney-client communications; whether the accused can be excluded from pre-trial sessions in which classified information is discussed; whether the defense is entitled to parity with the prosecution in subpoenaing witnesses; and how much discovery the prosecution must turn over to the defense. Judge James Pohl took the motions under advisement. That means he postponed ruling on them until later.

In 2006, in Hamdan v. Rumsfeld, the Supreme Court struck down the military commissions President Bush established in 2001 because their procedures did not comply with the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions. The Court ruled that members of al-Qaeda are entitled to the protections of Geneva’s Common Article 3, which includes being protected from the “passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

The Hamdan Court also said the commissions must follow procedural rules that basically parallel courts-martial proceedings under the UCMJ. Yet the Military Commissions Act of 2009 (MCA) [sec. 948b] says the UCMJ “does not, by its terms, apply to trial by military commissions except as specifically provided in this chapter.” It declares that this chapter is “based upon the procedures for trial by general courts-martial under [the UCMJ], ” but it also provides that “[j]udicial construction and application of [the UCMJ], while instructive, is therefore not of its own force binding on military commissions.” It remains to be seen whether the new, improved military commissions will pass constitutional muster if and when they get to the Supreme Court.

The Defendant’s Right to Confront Witnesses Against Him

The defense sought a ruling from the judge that the Confrontation Clause of the Sixth Amendment to the Constitution applies in this military commission in which the accused can get the death penalty. In Boumediene v. Bush, the Supreme Court ruled that Guantánamo detainees have a constitutional right to habeas corpus, since, although Guantánamo is on Cuban soil, the United States exercises complete jurisdiction and control over the US base there. Thus, the al-Nashiri defense argued, other constitutional rights, including the right to confrontation, apply in military commissions held at Guantánamo.

The Confrontation Clause gives the accused in a criminal case the right to confront and cross-examine witnesses against him. When the prosecution presents hearsay statements of unavailable witnesses, the accused is denied the right of cross-examination. As Justice Scalia wrote in the leading Confrontation Clause case, Crawford v. Washington, the Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.”

Hearsay is a statement that was made out of court but later offered at a hearing to prove the truth of the matter asserted in the statement. Although hearsay is presumed inadmissible unless it fits one of the exceptions in federal courts, the Military Commission Act (MCA) makes it easier to secure the admission of hearsay in military commission trials.

The Federal Rules of Evidence contain several exceptions to the ban on hearsay evidence, and many of them require that the person who made the hearsay statement be unavailable to testify at the present hearing. But when the proponent of the hearsay statement wrongfully procures the unavailability of the absent witness, the exception won’t be available as a vehicle to admit hearsay statement. This is called forfeiture by wrongdoing.

The prosecution wants to use the testimony of Fahd al-Quso against al-Nashiri. Al-Quso is unavailable to attend the trial because the US government killed him in a drone strike last year in Yemen. Thus it could be argued that the prosecution (the government) wrongly procured al-Quso’s unavailability by killing him.

In Giles v. California, the Supreme Court held that in order for forfeiture by wrongdoing to prevent the admission of a hearsay statement, the proponent of the statement must have killed the witness to prevent him from testifying. Thus, the defense will have to prove that the government killed al-Quso to prevent him from testifying against al-Nashiri.

The defense argued that the prosecution’s evidence will seemingly be full of unreliable double- and triple-hearsay (for example, “he said she said that he said X”). FBI reports in these cases typically contain hearsay statements of witnesses from Yemen, Afghanistan or Pakistan who are not available for trial.

The Constitution governs courts-martial and the evidentiary rules courts-martial use largely follow the Federal Rules of Evidence. Thus, it should be a no-brainer that the Constitution’s Confrontation Clause would apply in military commissions. Nevertheless, Judge Pohl seemed inclined to decide on a case-by-case basis.

The Crimes of Conspiracy and Terrorism Are Not Triable Under the Law of War

The defense asked the judge to dismiss the conspiracy and terrorism charges against al-Nashiri. Military commissions were established to try war crimes. The commissions are bound by Congress’ power to “define and punish … Offenses against the Law of Nations.” In order to vest a military commission with jurisdiction over an offense, it must be an established offense of that subset of the law of nations known as the law of war.

Conspiracy is not part of the law of war. A plurality of the Supreme Court stated in Hamdan that conspiracy is not a war crime under the traditional law of war. Terrorism is also absent from the law of war. In Tel-Oren v. Libyan Arab Republic, the DC Circuit Court of Appeals affirmed that terrorism itself is not an offense against the law of nations. The Second Circuit reaffirmed the lasting force of Tel-Oren in United States v. Yousef.

Salim Hamdan was tried under the Military Commissions Act of 2006. He was acquitted of conspiracy but convicted of providing material support for terrorism for acts done between 1996 and 2001. He appealed and, in 2012, in Hamdan II, a three-judge panel of the DC Circuit Court of Appeals reversed his material support conviction, holding that the 2006 MCA did not intend to criminalize pre-2006 conduct that was not considered a violation of the international laws of war. The panel concluded that material support was not a violation of the international law of war.

Ali Hamza Ahmad Suliman al-Bahlul was convicted of conspiracy by military commission. A three-judge panel of the DC Circuit reversed his conviction but the entire DC Circuit decided to hear the appeal. So this issue is currently pending in the Court of Appeals in Al-Bahlul.

These issues may well get to the Supreme Court. If prosecutors are foreclosed from charging conspiracy and terrorism in the military commissions, they may only be able to try high-level terrorism suspects in the commissions, for crimes such as murder, attacking civilians and hijacking. It is the “smaller fish” who have been charged with conspiracy and terrorism.

The prosecution asked the judge to dismiss the conspiracy charge against al-Nashiri but then tried to “bargain” with the defense and the judge to allow jury instructions on vicarious liability. That would mean that al-Nashiri could be convicted even if he didn’t personally carry out the crimes charged. The defense was adamantly opposed to the prosecutor’s proposed bargain.

Eavesdropping on Confidential Attorney-Client Communications

In February, it was revealed that the rooms in which attorneys meet with their clients at Guantánamo were equipped with listening devices made to look like smoke detectors (even though smoking is not allowed there). The attorney-client privilege is part of federal law, and the Supreme Court has interpreted the right to counsel under the Sixth Amendment to include the right to effective counsel. It is well established that an accused does not enjoy the effective aid of counsel if he is denied the right of private consultation with him. Yet there is no provision in the MCA that addresses the monitoring of communications between the accused and his attorney.

At the hearing last week, the defense asked Judge Pohl to temporarily suspend the proceedings until the defense could be fully informed of the extent of any third party monitoring of defense communications during legal visits with their clients. The defense also asked that necessary precautions be taken to ensure that such monitoring not take place in the future.

Neither of the two witnesses who testified at the hearing had knowledge of any eavesdropping on defense communications. But Navy Capt. Thomas Welsh, the Staff Judge Advocate for the Joint Task Force Guantanamo Bay (JTF-GTMO) testified that guards denied to defense counsel that any monitoring occurred because they feared they “could end up in court.” The defense raised dangers of such an “insecure” system.

Right of Accused to Be Present at All Hearings

A classified defense motion was heard in a secret session. The motion asked the judge to order the government to reveal information “related to the arrest, detention and interrogation” of al-Nashiri. Evidence obtained by torture or cruel, inhuman or degrading treatment is inadmissible in military commissions. Although al-Nashiri was tortured for several years while in custody at the CIA black sites, the judge said that al-Nashiri was not himself the source of the classified material at issue.

The defense sought to prevent al-Nashiri from being removed from the courtroom during closed sessions. If the accused is not allowed to hear the evidence, he could not assist his counsel in objecting to legally objectionable material. Richard Kammen, al-Nashiri’s lead attorney, said: “Let’s say in a hearing the government presents something in good faith that is simply untrue. Let’s say some agency gives them incorrect information. He will never be in a position to say to us, ‘That’s not true.’ And waiting til trial is way, way, way too late in a capital case.”

The UCMJ gives the accused the right to be present during all proceedings except jury deliberations. The MCA does not provide for the exclusion of the accused from any part of the trial unless he is disruptive, and classified information cannot be presented to the jury unless it is disclosed to the accused.

The Right of the Accused to Subpoena Witnesses

The defense requested that it be permitted to subpoena witnesses without requiring that the prosecution preview them. In the alternative, the defense asked for the right to see the prosecution’s witness list. The MCA provides, “The opportunity to obtain witnesses and evidence shall be comparable to the opportunity available to a criminal defendant in a court of the United States.” The defense is seeking parity with the prosecution to protect the defendant’s right to a fair trial.

Providing Defense Counsel With Discovery Provided to Habeas Counsel

There are about 3,000-4,000 documents that the government turned over to al-Nashiri’s lawyer in his habeas corpus (civil) proceeding. The documents are currently under a protective order. In Boumediene, the Supreme Court held that a habeas court must have the authority to admit and consider relevant exculpatory evidence. Defense counsel in al-Nashiri’s military commission want discovery of those documents because they may contain potentially exculpatory information. The prosecution’s burden to produce discovery information in a capital case is greater than that in a civil proceeding. Moreover, the MCA says the accused is entitled to exculpatory and mitigating information known to the prosecution.

Scope of Exculpatory Evidence Provided in Discovery

The prosecution sent out to government agencies Prudential Search Requests requesting “information or documents potentially material to the preparation of the defense,” yet the prosecution refuses to provide the defense with all of the material it received. The prosecution says that in death penalty cases, mitigation evidence is “limited to evidence of an accused’s character, background, and the circumstances of the offense.” But the Supreme Court has defined mitigating evidence as “evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value. Thus, a State cannot bar the consideration of … evidence if the sentence could reasonably find that it warrants a sentence less than death.” The prosecution is demanding the defense demonstrate that discovery is necessary, but the defense argues that the law provides for liberal discovery in order to protect the right to a fair trial.

Military Commissions Provide a Reduced Level of Due Process

Since Bush established the first military commissions in 2001, they have been controversial, so much so that the Supreme Court struck them down and Congress re-enacted them twice – once in 2006 and again in 2009 – providing slightly more due process each time. But the level of justice military commissions furnish remains inferior to that afforded in federal courts and military courts-martial. President Obama suspended the military commissions upon taking office in January 2009 in order to review whether to continue using them. In July of that year, he decided that military commissions were an appropriate forum for trying some cases involving alleged violations of the laws of war, even though he preferred federal criminal courts for detainee trials. Obama apparently chose political expediency over considerations of justice.

This article first appeared on Truthout

June 13, 2013

The Turkish Spring: Lawyers Rounded Up

For nearly three weeks, thousands of protestors have gathered peacefully at Occupy Gezi in Taksim Square in Istanbul. Turkish police have unleashed a brutal crackdown, resulting in three confirmed deaths and nearly 5,000 injured. According to Turkish lawyer Kerem Gulay, a Fulbright Scholar and doctoral student at Cornell Law School, police tactics include excessive beatings with police batons and rifle handles, and the use of pepper spray and other chemicals, rubber bullets, and, allegedly, real bullets.

In order to provide a pretext for police aggression against peaceful protestors, undercover police officers, acting as agents provocateurs, threw Molotov cocktails Tuesday at police, after which police launched a vicious attack on protestors.

A broad coalition of groups courageously gathered in Taksim Square is protesting neoliberal governmental policies, including economic, agricultural and environmental policies, human rights abuses, mass detentions, privatization of water resources, attacks on freedom of the press and on freedom of religion, and the treatment of Kurdish citizens of Turkey. The protestors’ politics range from moderate to center right to nationalist to left liberal to extreme leftist. “All these people have in common,” Gulay told me, “is they are critical of government policies.”

When lawyers were issuing a press statement decrying the mass detentions of their clients, some 50 lawyers were arrested and dragged on the ground by riot police. Many lawyers were injured before they were released 10 hours later. Nearly 3,000 lawyers gathered at the courthouse Tuesday to protest these detentions.

There is an ongoing and dangerous process of criminalization of lawyers in Turkey. Nine of fifteen lawyers arrested on January 18, 2013, for representing unpopular clients, remain in custody without charges or access to legal papers about their cases. On that date, police raided the Istanbul and Ankara offices of the Progressive Lawyers Association (CHD), a member organization of the International Association of Democratic Lawyers (IADL). Twelve CHD officers or members were violently detained under vague terrorism-related allegations. They were interrogated about their representation of clients. They were denied water and the use of a bathroom.

These arrests, detentions, and seizure of property—including confidential client files—violate the International Covenant on Civil and Political Rights. The cases are pending in the Special Heavy Penal Courts, which have jurisdiction over “terrorism” proceedings. Their use of secret evidence and repressive procedures have been condemned by several international and regional human rights monitoring bodies and mechanisms. The United Nations Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, who recently visited Turkey, strongly criticized [PDF] the Special Heavy Penal Courts, saying their “special authority” does not comply with human rights standards on fair trial, and they should therefore be abolished.

A group of 500 lawyers who went to the courthouse to protest the lawyers’ detention in January were assaulted by police. The Istanbul Bar Associationlambasted the unlawful raids as an “explicit attack towards the legal profession and its honor, as well as the people’s right to legal remedies.”

When I visited Istanbul as a representative of IADL in April, I met with officers of the Istanbul Bar Association, and I spoke with lawyers who had been arrested and released after the January raid. Some are members of CHD. Many specialize in defending victims of torture, arbitrary detention, extrajudicial executions, police brutality and other human rights violations. They also provide free legal assistance in terrorism-related cases, and those involving freedom of expression or protection of the environment. Because of their work in defending clients who challenge government policies, CHD lawyers have been targeted by the government and the police.

Knual also reaffirmed the principle that a government should not identify lawyers with the causes of their clients. The United Nations Basic Principles on the Role of Lawyers mandate that governments ensure lawyers are able to perform their professional functions without intimidation, hindrance, harassment or improper interference. They also provide that lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.

The president of the Istanbul Bar Association has been accused of contempt of court for protesting the January detentions of lawyers. According to the 2010 US State Department country report on Turkey, there are more than 10,000 people suspected of “terrorism” in Turkey (one-third of the world’s terrorism suspects). Several hundred students, as well as army officials, journalists, lawyers, academics, Kurdish activists, nationalist activists, soldiers and members of the Turkish parliament are in prison, Gulay said.

Frequent and systematic repression against political and human rights activists in Turkey, particularly lawyers and journalists, has been well documented. This year alone, representatives of IADL witnessed evidence of the Turkish state’s enforcement of broad and oppressive laws to suppress political dissent from journalists, lawyers, trade unionists and citizens.

The Turkish government must immediately halt all police repression against Turkey’s protestors, including police beatings, the use of tear gas and other chemicals; release all detained protesters who were expressing their fundamental right to freedom of expression; and launch an immediate investigation into the human rights abuses committed against the Turkish people since the beginning of the protests, including an investigation into the unlawful use of tear gas and other chemicals.

Taksim Solidarity, the group that was organized before the recent demonstrations to stop the notorious Taksim project of the government, and which has become the voice of the resistance, has declared June 13 International Day of Solidarity with the resisting people in Turkey. Taksim Solidarity invites progressive people around the world to condemn the police violence carried out by the direct order of the government and to show their solidarity. CHD has also issued a call for international solidarity and asks lawyers organizations and human rights organizations to express their concerns to the Turkish government and state bodies. IADL calls upon people throughout the world to join us in demanding an end to the violence against Turkish protestors and accountability.

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