Wire Report

Andy Worthington – Journalist/Author
	Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press) and serves as policy advisor to the Future of Freedom Foundation. Visit his website at: www.andyworthington.co.uk.

(WIRE FFF) – 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 U.S. Supreme Court.¹

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 terrorism², 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.

On the first point, lawyers have always maintained that providing material support to terrorism is not a valid war crime. In an email exchange last week, Lt. Col. David Frakt, who represented al-Bahlul before his trial, explained, “It has always been my position that material support to terrorism was a fabricated war crime that was not traditionally triable in a military commission as of the time of Mr. al-Bahlul and Mr. Hamdan’s affiliation with al-Qaeda, but rather was illegally retroactively applied to them several years after the fact.”

As Lt. Col. Frakt also mentioned, the problems with the material-support charges had been advanced by Hamdan’s attorneys in a pre-trial motion to dismiss the charge back in February 2008, when they also attempted to dismiss the conspiracy charge for the same reason. On July 16, the judge in Hamdan’s case, Army Capt. Keith Allred, rejected the motion to dismiss on ex post facto grounds, finding that “conspiracy and material support for terrorism have traditionally been considered violations of the law of war,” as Human Rights First explained in a summary of Hamdan’s case.³

Assist. Attrny. Gen. David S. Kris Statement to Comm. of Armed Srvcs U.S. Senate July 7, 2009 (PDF 61KB)

However, as Lt. Col. Frakt described it, Allred indicated that it was “a very close issue. Although he acknowledged that the crime of material support to terrorism had never been the subject of charges in a military commission before, he reasoned that similar conduct, essentially being part of an armed insurgent group committing war crimes against civilians, had been treated as a war crime in the past, such as during the U.S. Civil War. He argued that Congress was merely providing a new name to conduct that had always been treated as a law of war offense triable by military commission.”

Significantly, Lt. Col. Frakt added, “What Captain Allred ignored is that what Mr. Hamdan was charged with was essentially serving as a personal driver and servant to Osama bin Laden and there was no indication of involvement in any war crimes, against civilians or otherwise.”

Even more significantly, when the Obama administration and Congress revived the Commissions last summer, David Kris, a senior Justice Department official in the National Security Division, testified that the Justice Department had concluded that material support to terrorism was not a traditional war crime and should be removed from the new version of the Military Commissions Act. As Kris explained:

“While this is a very important offense in our counter-terrorism prosecutions in Federal Court … there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the rules of war … our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.”

David S. Kris
U.S. Assistant Attorney General
Department of Justice
National Security Division

As Lt. Col. Frakt explained to me, despite Kris’ concerns, “Congress rejected this sound advice and included material support to terrorism in the revised 2009 MCA, possibly in part because I advised CongressNov when I testified that if they removed this crime from statute there would be very few detainees left to prosecute.”

Noticeably, Kris was more enthusiastic about retaining the conspiracy charge, but as I explained in an article in November, “this, too, is fraught with problems. In Hamdan v. Rumsfeld, the case in which the Supreme Court shut down the Commissions’ first incarnation, Justice John Paul Stevens, in an opinion in which he was joined by three other justices, made a point of mentioning that ‘conspiracy’ has not traditionally been considered a war crime.”

In Hamdan’s case, a successful appeal on the material support charge would have little practical effect, as he is already a free man⁴ (although Charles Schmitz, who served as his interpreter during proceedings at Guantánamo, told the Wall Street Journal that it was “important to him to clear the conviction,” because “In Yemen, they look at him as a criminal. He’s been tainted.”).⁵

To be honest, a successful appeal on the material support charge would mean little to al-Bahlul either, although, it would, of course, fulfill the Justice Department’s own fears about including it in the new legislation, especially as the Obama administration has already announced its intention of using it against several prisoners currently held at Guantánamo.

It remains to be seen, of course, whether material support and/or conspiracy survive an appeal, but in court last week, lawyers for al-Bahlul pushed both points. As the Wall Street Journal described it, Michel Paradis, representing al-Bahlul, argued that the charges on which al-Bahlul was convicted “weren’t traditionally considered war crimes under international law, and thus Congress in 2006 couldn’t retroactively make them so. International law strongly discourages viewing conspiracy as a war crime. Providing material support for terrorism, while a domestic U.S. crime since the 1990s, has never been considered a war crime.”

Ingeniously, the lawyers also argued that al-Bahlul’s production of propaganda material for al-Qaeda should have been protected by the First Amendment of the U.S. Constitution, guaranteeing freedom of speech. One of his attorneys, Mike Berrigan, told reporters, “Mr. al-Bahlul’s conduct in making this documentary — his prosecution for that conduct — was a violation of the U.S. First Amendment. Not that Mr. al-Bahlul had particular First Amendment rights, but the constitutional restrictions on the U.S. government prosecuting someone for speech made the prosecution itself illegal. Mr. al-Bahlul’s conduct in making that documentary does not come close to the standard of inciting violence that can be criminalized.”⁶

The prosecution disagreed, of course, and Navy Capt. Edward White, who argued for the government at the appeal, stated, “Our position was that, as an enemy combatant waging war against the United States from abroad, he does not have First Amendment rights. He crossed the line into criminally, soliciting other people — inducing, enticing, encouraging, persuading them — to commit war crimes.”

Beyond all these claims, however, the most disturbing aspect of al-Bahlul’s conviction is the nature of his trial, and what Lt. Col. Frakt described to me as his “best hope” is that the Court of Military Commission Review will recognize that the one-sided trial, in which he refused to mount a defense, was fundamentally unfair — or, as Lt. Col. Frakt put it, the judge’s “denial of his right to self-representation essentially denied him of a fair trial because the judge knew that he would not allow me to represent him.”

This was indeed what happened. Al-Bahlul sought strenuously to represent himself, but although his request was granted by Army Col. Peter Brownback, his first judge in the revived Commissions, Brownback was then involuntarily retired from the Army, and the new judge, Air Force Col. Ronald Gregory, revoked al- Bahlul’s pro se status (his right to represent himself).

As I explained at the time, after Maj. Frakt (as he was at the time) announced that al-Bahlul was boycotting the trial, because he wished to represent himself, and did not wish to be represented by a military lawyer, Frakt then asked to be relieved, noting that he was obliged to respect his client’s wishes. When Col. Gregory refused, he declared that he too was unable to participate. “I will be joining Mr. al-Bahlul’s boycott of the proceedings,” he said, “standing mute at the table.” He then refused to answer any further questions from Col. Gregory, even though the judge attempted to argue that he was “obliged to participate,” before conceding that it was not in his power to force him to do so. As Lt. Col. Frakt described it to me last week, Col. Gregory’s actions “ensured there would be no defense at all in the final military commission trial of the Bush era.”

Lt. Col. Frakt also explained that, although appeals are automatic in the Commissions unless waived in writing, the only reason that al-Bahlul failed to waive his right to appeal in writing was because he “refused to accept any papers from his lawyers or the court.” As Frakt described it, “Mr. al-Bahlul made it plain to me that he did not wish to appeal any conviction and he categorically refused to meet with his appointed appellate counsel to discuss any possible grounds for appeal.”

Lt. Col. Frakt was full of praise for the lawyers attempting to defend al-Bahlul, even though they “were hampered by the fact that I did not preserve any issues for appeal (other than the self-representation issue) because I did not speak during the entire trial.” He noted that they “managed to find a way to raise a number of interesting and important issues that strike at the core of the legitimacy of the military commissions,” but in the end, what is most noticeable about al-Bahlul’s case is how he remains in a position of extraordinary isolation at Guantánamo.

Not only is he imprisoned, alone, to serve out his life sentence, but as Lt. Col. Frakt explained, “it remains a mystery what will happen to Mr. al-Bahlul. Although he is serving a life sentence, under current U.S. law, he can’t be transferred out of Guantánamo to a prison on the mainland because detainees can only be transferred to the U.S. to face trial.”

Unless he is to stay in Guantánamo, as the prison slowly empties around him, until, perhaps, he is the only prisoner left, it seems, as Lt. Col. Frakt also explained, that “special legislation will be required” to enable him to leave Guantánamo, even if it is just to resume his life sentence elsewhere.

Lost in the system, essentially, Ali Hamza al-Bahlul is another example of the way in which justice at Guantánamo never progressed much beyond an ad hoc system full of holes, and, whatever the outcome of these appeals, it should give the Obama administration some salutary reminders as to why the commissions remain an unsuitable system for any kind of credible trial.

© 2001-2010 The Future of Freedom Foundation. All rights reserved.

Source(s): ¹HAMDAN v. RUMSFELD, SECRETARY OF DEFENSE, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 05–184. Argued March 28, 2006—Decided June 29, 2006 • ²The UK Guardian “Profile: Salim Ahmed Hamdan” by Mark Tran published Tuesday, June 5th, 2007 • ³Human Rights First, “In the Courts: The Case of Salim Ahmed Hamdan” • ⁴The Star “Bin Laden’s Driver Talk” by Michelle Shephard, published Monday, August 17, 2009 • ⁵The Wall Street Journal “White House Defends Use of War Crime Tribunals” by Jess Bravin • ⁶Voice of America “US Military Panel Hears 1st Guantanamo Appeal” by Michael Bowman, published January 26, 2010

Allison Bricker

WASHINGTON D.C. – In an interview for the June 22nd issue of “The New Yorker”, Leon Panetta head of the C.I.A, says that former Vice-President Dick Cheney is almost hoping for a second attack on the United States as a means to buttress the former Vice President’s criticism of the Obama Administration’s foreign policy and as justification for the Bush Administration’s use of torture.¹

In a speech before the American Enterprise Institute² on May 21 of this year, former Vice-President Cheney labeled the Obama Administration’s rhetoric on completely ruling out the use of torture as “unwise in the extreme”. Thus, his language at the AEI and Sunday morning talk show circuit led Director Panetta to state during the interview with the New Yorker:

“It’s almost, a little bit, gallows politics. When you read behind it, it’s almost as if he’s wishing that this country would be attacked again, in order to make his point.”

Leon Panetta
Director
Central Intelligence Agency

While at first blush, readers may attempt to dismiss Director Panetta’s statement as hyperbole; intellectuals, students of history, and liberty activists may feel a slight tinge of déjà vu. That feeling most likely stems given former Vice-President Cheney’s involvement along with former Deputy Secretary of Defense, Paul Wolfowitz, former Secretary of Defense, Donald Rumsfeld, convicted former Chief of Staff for the Vice-President, Lewis “Scooter” Libby et al, with the now defunct “Project for a New American Century (PNAC). In September of 2000, PNAC releases a document entitled, “REBUILDING AMERICA’S DEFENSES-Strategy, Forces and Resources For a New Century”⁵. More specifically, in SECTION V entitled, “Creating Tomorrow’s Dominant Force”, the group wrote:

“Further, the process of transformation, even if it brings revolutionary change, is likely to be a long one, absent some catastrophic and catalyzing event–like a new Pearl Harbor“

REBUILDING AMERICA’S DEFENSES
SECTION V
Page 51

Mr. Panetta also went on to say during the interview that he supported an independent investigation of prisoner abuse at Guantanamo Bay during the Bush Administration. However, the chances for an independent investigation became moot after President Obama declined to hold any such investigation, which was subsequently explained by Press Secretary Robert Gibbs, as the President’s desire to look forward and not become bogged down in what could be perceived as a political witch hunt of the opposition.

However, both supporters of the administration, such as political commentator, Rachel Maddow³ and those seeking a non-interventionist foreign policy such as Representative Ron Paul of Texas point to signs, that the new administration’s foreign policy shares some core principles with that of his predecessor⁴. More precisely, both have pointed to the Obama’s Administration’s desire to construct a new legal framework of “Preventative Detention” as well as the expansion of the war in Afghanistan coupled with bleed over in to Pakistan in support of the notion that this is far from the “Change” promised on the campaign trail.

Source(s): ¹The New Yorker “The Secret History” by: Jane Mayer, issue stand date: June 22nd, 2009 • ² Fox News “American Enterprise Institute Transcript of speech by Dick Cheney” • ³ MSNBC “The Rachel Maddow Show” originally aired May 21sy, 2009 •⁴MinnesotaChris “Ron Paul Opposes Foreign Relations Authorization Act on House Floor” report filed Jun 6, 2009 • ⁵ Project for a New American Century “REBUILDING AMERICA’S DEFENSES-Strategy, Forces and Resources For a New Century”, published September 2000

Allison Bricker

On New Year’s Eve, while Kelly was at work, our youngest son and myself, spent the evening  in his bedroom building the Lego Star Wars ship he received from his Grandparents as a Christmas gift. Our youngest, being the complete Chicago Bears fan that he is, had his little alarm clock radio tuned to 780 AM WBBM, which is the station that broadcasts all the games, etcetera.

During a commercial break, we heard a help wanted advertisement from the CIA, attempting to recruit Americans to apply for a position in “The National Clandestine Service”.  The commercial contains buzz words like “patriotism”, “adventure”, “ambiguity”, and reeks of a Federal Government out of control.

A few question immediately sprang to my mind after hearing the CIA recruitment bulletin. Does a free nation really need a national snoop patrol? Is this in any way connected to President-Elect Obama’s previous remarks at a “Civilian National Security Force”? And what has become of our Republic? Fellow readers our country is indeed changing. As we sit mapping out sushi restaurants on our iPhones, the sacrifice of the Founding Generation is being wholly disposed of carte blanche in favor of “protecting the Homeland” and other ludicrous fear mongering one-liners.

Then again, it is obvious that the government’s definition of patriotism or perhaps more appropriately, neo-patriotism differs starkly from mine. Living under a constant surveillance apparatus coupled along with neighborhood snitches and the NSA’s “Black Widow” FISA approved, random email/phone-call eavesdropping computer program is the furthest thing from patriotic. Quite frankly, you do not defend the Constitution against all enemies foreign and domestic by side-stepping its enshrined restrictions against government abuse.

However, many may recall that shortly after September 11th, then Secretary of Defense and torture advocate, Donald Rumsfeld, along with his trigger-happy associate, Paul Wolfowitz pushing the idea of hot line for citizens to report “suspicious activities”.

“counter-surveillance of U.S. civilians is a perfectly understandable thing. In short,it’s no big deal.”
Donald Rumsfeld National Press Club Speech 2006

Source(s):

Allison Bricker

Government television, PBS, has begrudgingly agreed to air “Torturing Democracy”. However, the program will air on January 21st, 2009, one day after President Bush officially leaves office. Truth be told it should have been shown at its earliest availability, as the abuse evidenced within the documentary is enough to make one’s stomach turn, yet must be repudiated by our nation as wholly unacceptable. The evidence presented makes me ashamed to be an individual living in Neo-America. Everything our founders fought so hard to secure, has been squandered away. Not only have we allowed our inherent liberties to be legislatively curtailed in a post 9/11 world, almost silently the Bush Administration and its demented perverse sycophants, wholly jettisoned every last shred of our Republic’s decency.

The thought occurred to me as I watched memo after memo and heard line after line of official interrogation detail, that had I been taken captive or kidnapped via a rendition, that my retaliation to such treatment would be to bash my head against the wall until I was dead. Shortly thereafter, actual film from inside Abu Ghraib shows a detainee doing exactly this after being subjected to a variety of acts no reasonably decent person could even fathom.

Many of the “enhanced interrogation techniques” come from the C.I.A.’s 1963 “KUBARK”¹ manual which was so severe and inhumane that it was originally shelved. That is at least until Afghanistan, when it was dusted off and its techniques reemployed on enemy combatants. Techniques range from multiyear isolation, total sleep deprivation, water-boarding, to threats of repeatedly raping or killing one’s family members all in the hopes of obtaining a confession. In fact some of the techniques employed date back to punishments inflicted by the Spanish Inquisition as well as those of the former Soviet Union’s K.G.B.

Experienced soldiers and other military personnel will tell you, torturing only yields whatever will make the interrogator stop the abuse. Nonetheless and even though 500 of the approximately 700 to 800 detainees at Guantanamo have been released and never charged, countless were subjected to these techniques of dehumanization and legalized torture thanks to the sociopaths within the Bush Administration.

If we are to retain and restore the image of America, we must begin by forever outlawing this type of treatment in precise words so as not to give any room for a future John Yoo or Alberto Gonzales. Secondly, we must demand as decent law abiding Americans that all of those in the Bush Administration including the President, be tried and found guilty of Treason for their gross negligence both to their oaths of office and torturous war crimes; legalized, advanced, and committed on their behalf.

The film may be viewed in its entirety ahead of the scheduled January 21st, 2009 broadcast at TorturingDemocracy.org Additionally, their website has every single Presidential Directive, memo, and interrogation detail cited in the movie for your personal review.

Source(s): TorturingDemocracy.org “Torturing Democracy the Movie” • Hamden -v- Rumsfeld et al, No. 05-184. Argued March 28, 2006–Decided June 29, 2006 • ¹The National Security Archive at George Washington University