Ex-Gitmo detainee reportedly gets al-Qaida role

[Ramo]

If the use of military tribunals to adjudicate the status of detainees means that a process isn't "arbitrary", then the process at Gitmo isn't arbitrary.

CSRTs are shams. That's why the Supreme Court killed it.

How is it not relevant?

Because of the three or four orders of magnitude difference. Duh.

[Naked Gents Rut]

CSRTs are shams.

They aren't any worse than the AR-190-8 Tribunals you cited approvingly.

[Ramo]

Uh, no.

Although the model of Regulation 190-8 was invoked by
some members of Congress to justify ousting the courts of
habeas jurisdiction and replacing habeas with limited judicial
review of the CSRTs, there are fundamental differences
between CSRTs and hearings under Regulation 190-8—
differences that cannot be corrected under the severely
circumscribed review provided by the DTA, Pub. L. No. 109-
148, Tit. X, 119 Stat. 2739.4 The CSRTs depart significantly
from standards followed by the military for decades.
First, the CSRTs conducted after Rasul were irretrievably
infected with the pernicious effects of command influence—
the pressure that superiors exert over military subordinates.
Command influence eliminates “a forum where impartiality
is not impaired”; it is the “mortal enemy of military justice.”
United States v. Thomas, 22 M.J. 388 (CMA 1986). Its effect
is so harmful to the objectivity and the validity of any
military tribunal that it is prohibited by the Code of Military
Justice and the rules governing courts-martial. 10 U.S.C. §
837(a) (barring any attempt “to coerce” or “influence the
action of a court-martial or any other military tribunal”);
Manual of Courts-Martial, Rule 2-104 (2005) (“No person”
may “coerce” or “influence” the actions of any military
tribunal “with respect to such authority’s judicial acts”).
Command influence is inextricably intertwined with the
CSRT process in both form and practice. The CSRT Order
itself proclaimed that “[e]ach detainee” receiving a CSRT
already “has been determined to be an enemy combatant
through multiple levels of review.” CSRT Order §a (July 7,
2004) (emphasis added). Even before the CSRT Order, the
President labeled the detainees as “killers” and “terrorists.”
Bronwen Maddox, Truth is casualty in fog of the Afghan
war, THE TIMES (London), May 8, 2002. More recently, the
President reiterated that “a lot” of Guantanamo detainees “are
killers.” Maura Reynolds, No Tax Hike For Bridges, L.A.
TIMES, Aug. 10, 2007, at A12. On a visit to the Guantanamo
base in January 2002, former Secretary of Defense Donald
Rumsfeld described the detainees as “among the most
dangerous, best trained, vicious killers on the face of the
earth.” Christine Lowe, Guarding Gitmo, MARINE TIMES,
Feb. 11, 2002, at 211. Statements like these made it
exceedingly unlikely that a CSRT would reach a contrary
conclusion. Indeed, in a naked assertion of command
influence, in some of the rare cases where a detainee was
found by his CSRT panel not to be an enemy combatant,
higher ranking officials in the chain of command insisted on
another bite at the apple—a “do-over” by the same panel or a
new panel—until the CSRT reached the “correct” result: an
enemy combatant finding. Al-Odah v. Bush, No. 06-1196,
Reply to Opp. to Pet. for Rehearing, Decl. of Lt. Col.
Stephen Abraham ¶23.

Second, CSRTs were allowed to consider evidence against
a detainee procured by torture. The CSRT Order permitted
CSRT decisions to be based on “any information [the panel]
deems relevant and helpful to a resolution of the issue before
it,” including hearsay evidence obtained through
interrogation procedures prohibited by the Geneva
Conventions. CSRT Order §g(9). Regulation 190-8 hearings,
by contrast, bar evidence obtained by torture. Army Reg.
190-8, Ch. 2-1a(1)(d) (“The use of physical or mental torture
or any coercion to compel prisoners to provide information is
prohibited”). The government’s ability in the CSRTs to use
evidence procured by torture stacked the deck even more
heavily in its favor: an out-of-tribunal statement uttered by an
unknown individual under coercion—the content of which
was kept secret from the detainee—could result in a
detainee’s indefinite imprisonment.12

Third, Regulation 190-8’s stripped-down procedures are
necessary for the battlefields on which they were intended to
operate, where captured people must be sorted quickly. See
Regulation 190-8, Chs. 2-3. That justification does not apply
to CSRTs for individuals held thousands of miles from an
active theatre of war, years after their capture. See Hamdi,
542 U.S. at 534 (plurality opinion) (distinguishing the
process due when “continu[ing] to hold those who have been
seized” compared to “initial captures on the battlefield”);
Rasul, 542 U.S. at 488 (Kennedy, J., concurring) (“Perhaps,
where detainees are taken from a zone of hostilities,
detention without proceedings or trial would be justified by
military necessity for a matter of weeks; but as the period of
detention stretches from months to years, the case for
continued detention to meet military exigencies becomes
weaker”).

Fourth, an erroneous determination under the CSRT
process has repercussions far more severe than an error in a
Regulation 190-8 hearing. A prisoner-of-war finding means
that the person is held until the end of hostilities. But given
the nature of the “war on terror”—which may last
indefinitely—an “enemy combatant” label imposed by a
CSRT may result in imprisonment for the rest of a detainee’s
life. Our Nation’s military tradition does not permit imposing
a life sentence on a suspected enemy without substantially
greater procedural protections than the CSRTs provide.

Taken together, these differences show that CSRT
proceedings are little more than a façade, without even the
substantive protections that ensure compliance with Article 5
of the Geneva Conventions and that invest 190-8 tribunals
with legitimacy in the eyes of the world. Hearings conducted
by the U.S. military under Article 5 have long been models
of fairness, as evidenced by the large numbers of detainees
released as non-combatants during past conflicts following
such hearings conducted in the field. For example, in the
1991 Gulf War, nearly 1,200 hearings resulted in the release
of about 75% of those initially detained. Dep’t of Defense,
Final Report to Congress: Conduct of the Persian Gulf War
L-3 (1992). In contrast, the CSRT regime is heavily tilted in
favor of an enemy combatant finding, which undermines the
legitimacy of the military justice system.

These serious defects are compounded by the sharply
limited judicial review the DTA provides for CSRT findings.
The DTA limits the D.C. Circuit to deciding whether the
findings were “consistent with the standards and procedures”
for CSRTs. DTA §1005(e)(2)(C)(i). This tautology does not
remedy the defects in the “standards and procedures” of the
CSRT program. While the statute provides that the D.C.
Circuit may consider the Constitution “to the extent * * *
applicable,” §1005(e)(2)(C)(ii), the government’s view is that
no Constitutional provisions apply to the detainees held at
Guantanamo. Br. Opp. 19-25. If the Court rejects that
position, as it should, then it should reject the Government’s
reliance on the CSRT results. In light of the possibility of
what amounts to a life sentence, the CSRT procedures and
limited DTA review do not measure up to Constitutional
standards, as a number of other briefs explain.

http://www.mayerbrown.com/public_docs/probono_Retired_Military_Amicus.pdf

[Darius871]

And this doesn't frighten people more than Gitmo? Why are our civil libertarians so short-sighted?

Well, I can't speak for them on that point. It's just proof that statutorily-specified conspiracy prosecution is remarkably effective, whether "freedomy" or not.

The AQ trainees that get tracked into the cannon-fodder career path generally aren't the ones from who fly in from halfway around the world. I don't see how you can nail an illiterate Pashtun trigger-puller on conspiracy to commit terrorist acts

Like I said, statutory definition. If you make attendance at an AQ camp one of several definitions, and the prosecution proves - under any statutory standard of proof you prefer, probable cause, preponderance, clear and convincing, beyond all reasonable doubt, whatever you think would best lower the risk of errant releases - that 1) a defendant was present in camp X for time period Y and 2) camp X was operated by a designated terrorist organization, then the substantive crime is established, and the defendant's being an illiterate Pashtun farmer or a ****ing Teletubby doesn't make any difference whatsoever. Intent is not an element of the crime if statute so directs. Don't you get it?

unless you consider everyone who's ever been involved with Al Qaeda to be part of the conspiracy.

...and what would be the problem with that?

Under even non-statutory conspiracy law as it exists today, a punk slinging rock on the corner could technically be tried for a contract killing by a Tijuana cartel kingpin even though he has no knowledge or intent. Merely being an active "link" in an identifiable "chain" is technically sufficient. The only reason cases like that don't happen is because prosecutors are too overwhelmed to waste time on it and/or don't want to look ridiculously draconian. But if we made the deliberate policy decision to take that kind of harsh stance towards terrorist trainees it'd usually succeed, and with strict statutory definition it'd always succeed. It's just a question of whether you'd want to pass that bill.

Of course, that brings up the question of why the U.S. government doesn't just declare that every member of the Taliban was also involved in a conspiracy to commit terrorist acts. Once you abandon any sort of good-faith attempt to determine whether an individual was actually involved in planning and perpetrating terrorist acts, where do you draw the line on who's a criminal and who isn't?

How is proving terrorist training camp attendance not a "good faith effort"? If you're just meat-and-potatoes Taliban trying to militarily overthrow the Afghan government, with no interest in killing civilians to instill terror as a political weapon, then don't go to a ****ing terrorist training camp. If you throw down with the right people, then you'll be treated the right way - as an ordinary insurgent. If you throw down with the wrong people, then you'll be classified as one.

I don't see a problem in the practical implementation. I just don't understand why we need to abandon a perfectly workable system for dealing with Geneva-compliant POWs and non-compliant enemy combatants and replace it with a court-driven system that will need to prosecute enemy soldiers on trumped-up conspiracy charges in order to keep dangerous individuals in custody. The whole concept seems far more damaging to the rule of law than Gitmo ever was.

I never said anything about dealing with Geneva-compliant POWs any differently. It's just that there aren't any in existence, and unlawful combatant status has been devoid of clear rules for determining a factually founded basis for indefinite detention. It'd be incredibly easy to statutorily define what the minimum factual basis would be, set a considerably-less-than-the-due-process-citizens-are-afforded judicial procedure to determine the presence of that basis in individual cases, and let the chips fall where they may. The SCOTUS has already found as much, because the alternative is arbitrary power to detain anyone anywhere for any amount of time without having to explain to a neutral party why. You don't have to be a card-carrying ACLU member to understand why that's dangerous in the long-term.

[The Mad Monk]

No. Close Gitmo, lock these guys down in any number of other facilities we have for such a purpose. Treat them like any other high-threat prisoners (and, in truth, once imprisoned they are far less of a threat than your average American murderer). Let Amnesty International visit if they want. They try them in accordance with established law and international protocols. then, if they're found guilty, execute them.

Is that really so hard to understand?

Would that be military courts, or civilian?

[Sirotnikov]

Jihad doesn't mean what you think it means. It's a broad term and can mean other things than terror and war, his jihad then might have been on a different level. For example he could be saying he feels he got inprisoned because of his views or whatever.

Yes it could happen theoretically. However the circumstantial evidence (esp. him receiving a top post in AQ) strongly suggest he goes for the war and terror meaning, and admits this is what the US has imprisoned him.

Jihad nowdays usually does refer to the (usually violent) struggle against the west and the kufars.

You could question how violently did he practice his personal struggle, and I'll tell you that you should ask the DIA, but there's little speculation room for the notion he was a totally unrelated Afghani farmer unjustly imprisoned.

[chequita guevara]

Since people have been successfully prosecuted under the Smith Act for mere CPUSA membership because the CPUSA doctrinally advocated violent overthrow and some other members of it had committed violent acts for that purpose

And this doesn't frighten people more than Gitmo? Why are our civil libertarians so short-sighted?

Because SCOTUS overturned portions of that law in the early 60s. The Feds can only prosecute folks like me if there is a real danger we're capable of carrying it out.

[chequita guevara]

Many of the people in Gitmo weren't fighting the U.S. as far as can be determined (although I think the majority were). A good number were handed over by Afghan warlords, who received a bounty for every AQ person they turned in. Under the Taliban, there were a number of Arab charities in the country, and when the fall occurred, many of these folks were caught by warlords and sold to the U.S. as terrorists.

Anyway, the real problem with Gitmo has never been its existence, aside from the fact that Gitmo belongs to Cuba and should be returned. The problem was that the Administration claimed that it was outside American jurisdiction, and that American law didn't apply there, and so they could do whatever they wanted to the prisoners. Once SCOTUS slapped that idea down, it was no longer a human rights issue. As long as we aren't torturing them and we are respecting their rights as guaranteed by our system of law, I don't care where we incarcerate them.

[Naked Gents Rut]

The Feds can only prosecute folks like me if there is a real danger we're capable of carrying it out.

Once SCOTUS slapped that idea down, it was no longer a human rights issue. As long as we aren't torturing them and we are respecting their rights as guaranteed by our system of law, I don't care where we incarcerate them.

[Ramo]

The problem was that the Administration claimed that it was outside American jurisdiction, and that American law didn't apply there, and so they could do whatever they wanted to the prisoners. Once SCOTUS slapped that idea down, it was no longer a human rights issue. As long as we aren't torturing them and we are respecting their rights as guaranteed by our system of law, I don't care where we incarcerate them.

Um. There's a pretty significant issue about compliance with Boumediene. The closing down of Gitmo is symbolic of extending due process to the detainees in good faith. It's a no-brainer as far as public diplomacy.

[Darius871]

Because SCOTUS overturned portions of that law in the early 60s. The Feds can only prosecute folks like me if there is a real danger we're capable of carrying it out.

Don't be disingenuous. The SCOTUS (particularly in Scales v. U.S. and Noto v. U.S.) did not strike down the membership clause as invalid on its face; it merely increased the burden of proof as to individuals' "active" membership and actual individual intention for the organization to accomplish criminal goals, and on this theory the membership charge was sustained by Scales, which has not been overturned to this day. Sure the heightened evidentiary standard would make prosecution impractical for 99.9999% of CPUSA members because their membership is typically nominal and limited to expression of abstract doctrine, but my only point earlier was that the method of statutorily prohibiting organization membership has never been facially invalidated by the SCOTUS and could therefore be applied to attendees of terrorist training camps where both A) the teaching of actual techniques for violence and B) members' awareness of and acquiescence to other members' open violence are both unquestioned. The constant immediacy of a determined terrorist threat is also very distinguishable from CPUSA doctrine which was only waiting for a fortuitous opportunity and therefore not as vulnerable to the court's balancing of rights against gravity times probability. Finally, keep in mind that every SCOTUS case on the issue has consistently distinguished between expression and conduct, and obviously attending a terrorist training camp constitutes conduct.

All that aside, AFAICS the Smith Act cases all dealt with U.S. citizens. I fail to see how their heightened standard of proof would have any effect on a statutory process for non-resident aliens detained overseas, when no case supports the proposition that non-resident aliens detained overseas enjoy the fullest protections of the 5th Amendment or any protections under the 1st Amendment. Anyone who was under the impression that cases like Boumediene extended constitutional rights wholesale would be well advised to actually read them.

Anyway, the real problem with Gitmo has never been its existence, aside from the fact that Gitmo belongs to Cuba and should be returned. The problem was that the Administration claimed that it was outside American jurisdiction, and that American law didn't apply there, and so they could do whatever they wanted to the prisoners. Once SCOTUS slapped that idea down, it was no longer a human rights issue.

Don't be disingenuous. The SCOTUS did slap down the idea that Gitmo lies outside U.S. jurisdiction, but that didn't have jack**** to do with what the Administration was "doing to" the prisoners. I think I said it before on this thread but I'll say it again: of the 45,000+ words in Boumediene, constitutionality of the prisoners' physical treatment was discussed in precisely zero. It was strictly limited to habaeus corpus. The only case to mention physical treatment was Hamdan, and there it was only mentioned in passing to explicitly reserve any judgment on whether or not Gitmo detainees are entitled to POW protections. Until the SCOTUS decides otherwise, even post-Boumediene Obama is still free to torture away if he chooses to, whether in Gitmo or not.

Their words couldn't be more clear:

MCA § 7 thus effects an unconstitutional suspension of the writ. In view of our holding we need not discuss the reach of the writ with respect to claims of unlawful conditions of treatment or confinement.

Boumediene v. Bush, 128 S.Ct. at 2274.

Because we hold that Hamdan may not, in any event, be tried by the military commission the President has convened, the question whether his potential status as a prisoner of war independently renders illegal his trial by military commission may be reserved.

Hamdan v. Rumsfeld, 548 U.S. at 630.

[chequita guevara]

You should look up Yates v U.S. It pretty much gutted the Smith Act.

http://en.wikipedia.org/wiki/Yates_v._United_States

As for Gitmo, American law makes torture illegal, and SCOTUS says American law applies to the detainees, therefore, torturing them is illegal. The problem is not Gitmo, the problem was an administration that refused to obey the law. When the new Emperor will continue the politics of the old emperor remains to be seen. Since he just committed his first war crime in Pakistan, I'm not holding out much hope, even with the closing of Gitmo . . . eventually.

[Darius871]

You should look up Yates v U.S. It pretty much gutted the Smith Act.
http://en.wikipedia.org/wiki/Yates_v._United_States

Read it long ago. You should note that both Scales and Noto postdate Yates by half a decade so it is not controlling as to whether membership clauses are facially invalid.

As for Gitmo, American law makes torture illegal, and SCOTUS says American law applies to the detainees, therefore, torturing them is illegal.

A) Until the SCOTUS has so held, it is not the law, only your conclusion. And again, I can only suggest that you actually read Boumediene because it did not categorically "say American law applies to detainees." It could have, but it did not. It made the far, far narrower "hold[ing] that Art. I, § 9, cl. 2, of the Constitution has full effect at Guantanamo Bay" (emphasis added), and you should know that "the Suspension Clause" and "American law" differ in scope by countless orders of magnitude. Any extrapolations you draw from that extremely narrow proposition - no matter how logical - are not the law until stated in a binding court decision. That is, if you believe in the rule of law.

B) Even supposing that Boumediene said more than it did, you're wrong to say "American law makes torture illegal." More accurately, it's "American law makes torture illegal in certain circumstances." To start, the SCOTUS hasn't yet had occasion to decide if the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is not self-executing (i.e. not binding), but it denied certiorari to federal circuit cases holding precisely that, and explicitly looked favorably on such cases in Medellin v. Texas, 128 S.Ct. 1346 (2008), so evidently treaty is out. All that's left then is the domestic statute (18 U.S.C. § 2340), but it's explicitly limited to a prisoner that's either A) a "national of the United States" or B) "present in the United States," which is defined as "several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States." Boumediene relied on rejecting the formalistic argument that "Cuba retains technical sovereignty whereas the U.S. is just a lessee," in part because the Constitution is not by its own terms tied to sovereign soil, but that reasoning is in no way applicable to a statutory definition that explicitly ties to sovereign soil in a way that the Constitution did not. In some future case the SCOTUS might take a real leap and declare Gitmo a "possession" for § 2340 purposes, but until it does so, it is not the law. That is, if you believe in the rule of law.

Is Boumediene a step in the right direction? Sure. Does it have anything to do with harsh treatment? No. At least not yet.